The Politics of the Rule of Law in the EU Polity: Actors, Tools and Challenges (Palgrave Studies in European Union Politics) 3030973662, 9783030973667

Table of contents :
Acknowledgements
Contents
About the Author
Abbreviations
List of Figures
List of Tables
Chapter 1: The Gradual Establishment of an EU Rule of Law Policy in Times of Dissensus
1.1 Introduction
1.2 The Assault on Judicial Institutions on the Agenda of the EU
1.3 More than an Assault: A Clash of Liberal and Anti-liberal Ideas
1.4 Irreconcilable Conceptions of Power, Authority, and Sovereignty
1.5 The EU’s Rule of Law Policy and Tools
1.6 The Politics of the Rule of Law in Times of Dissensus
1.7 Who Shapes the EU’s Rule of Law Policy, and How?
The Rule of Law Policy in the Shadow of the New Intergovermentalism
The Rule of Law Policy and the New Supranationalism
The Rule of Law and the New Parliamentarism
Change Over Time and Dynamic Institutional Relationships
1.8 Structure of the Book
Data and Methodology
References
Chapter 2: The Core Dimensions of the Rule of Law: From Consensus to Dissensus
2.1 Introduction
2.2 The Rule of Law, a Multi-dimensional Concept Rooted in Different Traditions
Control and Checks and Balances
Consent: Who Decides Who Decides?
Thin and Substantive Understandings
2.3 The Rule of Law in the Constitutions of the EU Member States
2.4 The Value of the Rule of Law and Independent Courts
2.5 Principled Consensus: Global Commitment and the Rise of a Paradigm
2.6 An Analytical Grid: Consensus, Dissensus, and Contestation Over the Rule of Law
Dissensus
Experienced-Based Contestation
2.7 Conclusion
References
Chapter 3: From the Constitutionalisation of Values to the Question of Enforcement
3.1 Introduction
3.2 From a Community Shape by Law to a Community of Rights and Values
3.3 The Legitimacy Gaps of Article 7 TEU: From Discursive Consensus over Values to Institutional Divides
3.4 From the Copenhagen Declaration to the Copenhagen Criteria: The Establishment of a Rule of Law Governance
3.5 Conclusions
References
Chapter 4: The Commission’s Rule of Law Soft Tools: Towards the Establishment of a Monitoring Regime?
4.1 Introduction
4.2 The Commission: A Constrained Policy Entrepreneur?
4.3 Anchoring Justice Systems Reforms in EU’s Economic Governance: The Justice Scoreboard and the European Semester
Agency Seeking: The Expert Power of the Commission in Assessing the Efficiency, Quality, and Independence of Justice Systems
Agenda-Setting Through Soft Tools: The European Semester
Constructing Consensus over Justice Reforms in the European Semester
An Instance of Dissensus: The Political Use of the Semester to Safeguard the Rule of Law in Poland
4.4 Strengthening the Commission’s Procedural Authority: The Rule of Law Framework
Contested Legality
The Formalisation of the Pre-Article 7 TEU Procedure
In the Middle of Dissensus: The Commission’s Dialogue with Poland or the Meeting of Law, Politics, and Technocracy
4.5 Conclusions
References
Chapter 5: The European Parliament: How Coalition Formation and Internal Group Dynamics Shape EU’s Rule of Law Policy?
5.1 Introduction
5.2 Consensus, Contestation, and Dissensus. Explaining Legislative Politics Through MEPs Behaviour
5.3 Coalition Patterns of Dissensus and Contestation in Triggering Rule of Law Policy Tools
Triggering Article 7 TEU Against Hungary: The EPP’s Strategic and Discursive Coalition with the “Untidy” Right
The EPP’s Support for the Bulgarian GERB
The Slow Detachment of the S&D from Their Romanian Members: Discursive Coalitions in Reverse
The EPP-S&D Clash over the Rule of Law in Malta
Less Contestation and Dissensus: A Grand Coalition Against PiS
Renew’s Limited Support to Its Czech ANO 2011 Member
5.4 Reaching Consensus. Working to Establish an EU Mechanism for Democracy, the Rule of Law, and Fundamental Rights
From the Establishment of a Copenhagen Commission to the EU Mechanism on Democracy, the Rule of Law, and Fundamental Rights
Polarised Views on the Rule of Law Governance
The EU Mechanism on Democracy, the Rule of Law, and Fundamental Rights
5.5 Conclusion
References
Chapter 6: The Rule of Law Debate in the Council: Weak Consensus and Impossible Deliberation and Persuasion in Times of Dissensus and Contestation
6.1 Introduction
6.2 Member States’ Coalitions on the EU’s Rule of Law Policy
6.3 The Annual Rule of Law Dialogue in the Council: A Belgo-German Initiative
6.4 Article 7 TEU Hearings in the Council: A Clear Expression of the East-West Divide?
Article 7 TEU Hearings with Poland
Confrontational Article 7 TEU Hearings with Hungary
Two Different Styles and Irreconcilable Positions
6.5 Conclusion
References
Chapter 7: The European Council’s Role in Day-to-Day Decision-Making: Increasing the EU’s Authority Through a General Regime of Conditionality (Regulation 2020/2092)?
7.1 Introduction
7.2 A Political Proposal Initiated by a Political Commission: Towards Another Article 7 TEU?
Mainstreaming Conditionality to Bolster the EU’s Authority: A Divisive Idea “dans l’air du temps” in European Capitals
The Commission’s Initial Ambitions
Towards a Definition of Rule of Law Rooted in Intellectual Traditions and CJEU Case Law
A Supranational Decision-Making Framework for a General Regime of Conditionality
7.3 The Major Shift: The Political Ambitions of the Commission Tempered by the Council Legal Service
7.4 From Legal Reluctance in the Council to Consensus in the EP
In Search of a Role for the EP, Experts, and National Parliaments
Safeguarding the Interests of Beneficiaries: Only Legitimate Interests However
7.5 From Technical Issues to Political Guidance from the European Council
Compromises on Technical Issues Under the Romanian Presidency
The July 2020 European Council: Agreement or Not on the Rule of Law Conditionality?
The German Proposal: How to Reconcile Irreconcilable Positions?
7.6 The Final Game: Who Gets What and How?
What Was Non-negotiable
What the EP Wanted and What It Obtained
What the Commission Wanted
The Leaders Take All Again: The Controversial Conclusions of the December 2020 European Council
The Commission’s Adoption of Guidelines: Obedient or Independent?
7.7 Conclusion
References
Chapter 8: When Civil Society Engages with the EU’s Rule of Law Policy-Making: Towards a More Substantive Understanding?
8.1 Introduction
8.2 Civil Society and the Rule of Law: Engaging with the Commission in European Consultations
The 2013 Consultation: Les Assises de la Justice
Calling on the EU for a Comprehensive Human Rights Policy
2019 Consultation on the Rule of Law
The Question of Definition: What Is the Rule of Law Anyway?
The Rule of Law Substance: Rights and Social Welfare
Control: Contrasting Views over the Rule of Law Governance Beyond Supranational Versus Intergovernmental Designs
Legality at the Core of Dissensus
8.3 European Citizens’ Initiatives: Participatory Tools to Give Meaning to Rights?
Wake up Europe: The 2015 ECI on Democratic Backsliding in Hungary
The 2019 ECI for the Respect for the Rule of Law Within the European Union
An Unsuccessful ECI, a Failure?
8.4 Conclusion
References
Chapter 9: Ten Years on, What Then Is the Outcome? Consensus, Dissensus and Contestation over the Rule of Law
9.1 Introduction
9.2 A Twofold Foundational Conflict
9.3 Contesters, Dissenters, and Consenters: What Are They Fighting for?
9.4 Who Governs?
9.5 From Soft to Hard Policy Tools and from Governance to More Integration in Core State Powers
References
Index

Citation preview

PALGRAVE STUDIES IN EUROPEAN UNION POLITICS SERIES EDITORS: MICHELLE EGAN · NEILL NUGENT · WILLIAM E. PATERSON

The Politics of the Rule of Law in the EU Polity Actors, Tools and Challenges

Ramona Coman

Palgrave Studies in European Union Politics Series Editors Michelle Egan American University Washington, DC, USA Neill Nugent Manchester Metropolitan University Manchester, UK William E. Paterson Aston University Birmingham, UK

Following on the sustained success of the acclaimed European Union Series, which essentially publishes research-based textbooks, Palgrave Studies in European Union Politics publishes cutting edge research-driven monographs. The remit of the series is broadly defined, both in terms of subject and academic discipline. All topics of significance concerning the nature and operation of the European Union potentially fall within the scope of the series. The series is multidisciplinary to reflect the growing importance of the EU as a political, economic and social phenomenon. To submit a proposal, please contact Senior Editor Ambra Finotello [email protected]. This series is indexed by Scopus. Editorial Board: Laurie Buonanno (SUNY Buffalo State, USA) Kenneth Dyson (Cardiff University, UK) Brigid Laffan (European University Institute, Italy) Claudio Radaelli (University College London, UK) Mark Rhinard (Stockholm University, Sweden) Ariadna Ripoll Servent (University of Bamberg, Germany) Frank Schimmelfennig (ETH Zurich, Switzerland) Claudia Sternberg (University College London, UK) Nathalie Tocci (Istituto Affari Internazionali, Italy) More information about this series at https://link.springer.com/bookseries/14629

Ramona Coman

The Politics of the Rule of Law in the EU Polity Actors, Tools and Challenges

Ramona Coman Department of Political Science Universite libre de Bruxelles Bruxelles, Belgium

ISSN 2662-5873     ISSN 2662-5881 (electronic) Palgrave Studies in European Union Politics ISBN 978-3-030-97366-7    ISBN 978-3-030-97367-4 (eBook) https://doi.org/10.1007/978-3-030-97367-4 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For Carolina Eline and Eddy Warrand

Acknowledgements

This book is the culmination of three years of research and teaching about the rule of law at the Institut d’études européennes (IEE) of the Université libre de Bruxelles (ULB) as part of a Jean Monnet module (2018–2021) entitled “Rule of law and mutual trust in global and European governance” (599377-EPP-1-2018-1-BE-EPPJMO-MODULE  - 2018-1778). This module was officially launched on 4 December 2018, with a keynote by Judith Sargentini (former member of the European Parliament, group of the Greens/ALE) after the European Parliament vote that triggered Article 7 TEU against Hungary, and it was concluded on 26 November 2020, with a public dialogue with Commissioner Didier Reynders, after the publication of the first Rule of Law Annual Report by the European Commission. From 2018 to 2021, several academics, civil servants, lawyers, judges, practitioners, and EU decision-makers had been invited to dialogue with my students and to shed light on the challenges of the rule of law in the EU. Their talks nourished my reflection to a large extent and enriched my Jean Monnet module and teaching activities. I once again take this opportunity to thank them for their contributions. At the IEE, I have the privilege of having brilliant students. I thank all of them here too, in particular those who actively contributed to all the activities of the Jean Monnet module, as in a way they have been my first readers since many topics of this book were discussed with them during my lectures. As the IEE is an interdisciplinary research centre, the book has benefitted from a series of discussions with several colleagues in adjacent fields: Anne Weyembergh (professor in Criminal EU Law, Vice-rector of the vii

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ULB), Emmanuelle Bribosia (ULB professor in EU Law, judge at the Constitutional Court of Belgium), Cecilia Rizcallah (FNRS post-doctoral researcher), and Arnaud Van Waeyenberge (associate professor of European Law at HEC, Paris, and member of the IEE), who participated in the activities of my Jean Monnet module, reinforcing my sense of how important it is to be able to understand the legal aspects of the very sensitive rule of law debate. Although I socialise with lawyers in my daily life at the Institute, I am a political scientist, and the book is designed with a focus on politics. Its core ideas have matured in a series of other projects run in parallel as well as research collaborations from which I learned a great deal. When I launched this Jean Monnet module in 2018, I was completing my research work in the Horizon 2020 Project ENLIGHTEN, led by Len Seabrooke (professor, Copenhagen Business School), with the important contribution of Vivien A.  Schmidt (Jean Monnet Professor, Boston University). The ENLIGHTEN project allowed me to develop my ideas about the transformation of EU’s modes of governance and to conduct research on the European Semester, integrated in the book, with a focus on justice reforms. Vivien Schmidt’s work on the interplay between power and ideas has, as always, been a particular inspiration here! In 2018, I was about to conclude a project on European Values (ARC— Action de Recherche Concertée, ULB) conducted with François Foret (professor in political science, ULB) and François Heinderyckx (professor in communication studies, ULB). As part of this project, in 2021, I co-­authored a special issue of European Politics and Societies focused on the emergence and circulation of anti-liberal ideas. The discussions for that special issue with Clara Volintiru (ASE Bucharest), Valentin Behr (University of Strasbourg), and Aron Buzogany (University of Natural Resources and Life Sciences) helped me to situate the rule of law debate in a broader context, including the intellectual production of anti-liberal ideas in Poland and Hungary. Special thanks are due here also to Alvaro Oleart (Maastricht University), Luis Bouza Garcia (professor in political science, University Autonoma Madrid), and Christian Lequesne (professor, SciencePo Paris) who provided invaluable feedback on some parts of this manuscript. In 2018, I was also starting a project founded by the Wiener Anspach Foundation, which supports academic collaborations between the ULB and the Universities of Oxford and Cambridge. This project, concluded in 2021, also nourished the content of this book in many ways, as it was focused on “Conflicts of Sovereignty in the EU”, with the rule of law as

 ACKNOWLEDGEMENTS 

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one of the case studies. With Nathalie Brack (associate professor, ULB), Amandine Crespy (associate professor, ULB), Christopher Bickerton (professor, Cambridge University), and Julia Rone (post-doctoral researcher, Cambridge University), I have been working to understand the nature of new conflicts in the EU.  Examining the Polish Law and Justice Party’s (PiS) understanding of sovereignty in this project gave me the opportunity to review key concepts such as sovereignty, power, authority, all intertwined with the rule of law, yet rarely examined together. Parts of this book had been presented at the RECONECT conference in London in January 2020, at the Council for European Studies in Reykjavik in June 2021, at the University of Siena in June 2021 in a seminar organised by Mattia Guidi and Sorina Soare, and in November 2021 at the Institut d’études européennes, when my colleagues from the IEE and the Centre d’Etude de la Vie Politique (CEVIPOL) provided invaluable comments, contributing immensely to the final product. I owe a great deal to many other people, in particular Jasmien Baeyens, Alice Bazzichelli, Francisco De Araujo Vasquez, and Laura Sanz (students of mine at the IEE), who served as research assistants for this manuscript. I am also immensely grateful to Joanna Britton and Katya Long for the language editing of the manuscript as well as to Karthika Devi Ravikumar (production editor) for her precious support and guidance. Most of the writing for the book was done when I was serving as president of the Institut d’études européennes at the ULB. At the IEE, I have had the immense privilege of being able to count on the support of many colleagues and friends, in particular Nathalie Brack, Amandine Crespy, François Foret, Seda Gürkan, Luca Tomini, Nicolas Verschueren, and Mario Telò. For their precious support in all my activities, I cannot thank enough the IEE and CEVIPOL administrative teams: Maria-Isabel, Jozefien, Frederik, Dominique, Michela, Ana, Leslie, Olga, and Françoise. Above all, I would never have enough words to thank my family: my mother, Felicia, my father who will be always missed, my mother-in-law, Suzanne, and opa Paul, my amazing three sisters, and all the other members of my beautiful and numerous Belgian and Romanian family from Lennik and Brasov. I am grateful to them in countless ways, as I am to my dear eightyear young daughter, Carolina Eline, who is the most amazing little girl in the world, and my husband, Eddy, for giving me so much love every day. Lennik, 22 December 2021

Contents

1 The Gradual Establishment of an EU Rule of Law Policy in Times of Dissensus  1 2 The Core Dimensions of the Rule of Law: From Consensus to Dissensus 37 3 From the Constitutionalisation of Values to the Question of Enforcement 75 4 The Commission’s Rule of Law Soft Tools: Towards the Establishment of a Monitoring Regime? 97 5 The European Parliament: How Coalition Formation and Internal Group Dynamics Shape EU’s Rule of Law Policy?129 6 The Rule of Law Debate in the Council: Weak Consensus and Impossible Deliberation and Persuasion in Times of Dissensus and Contestation171 7 The European Council’s Role in Day-to-Day DecisionMaking: Increasing the EU’s Authority Through a General Regime of Conditionality (Regulation 2020/2092)?195

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8 When Civil Society Engages with the EU’s Rule of Law Policy-Making: Towards a More Substantive Understanding?241 9 Ten Years on, What Then Is the Outcome? Consensus, Dissensus and Contestation over the Rule of Law265 Index283

About the Author

Ramona Coman  is Professor in Political Science at the Université libre de Bruxelles (ULB) and the president of the Institute for European Studies (since 2019). Her research examines dynamics of policy/institutional change, democratisation, and Europeanisation, with a focus on EU’s rule of law policy tools and judicial reforms in Central and Eastern Europe. She has co-edited Politics and Governance in the Post-Crisis European Union (Cambridge University Press, 2020).

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Abbreviations

ABA American Bar Association ALDE Alliance of Democrats and Liberals in Europe CEPEJ European Commission for the efficiency of justice CJEU Court of Justice of the European Union CLS Council’s Legal Service CSR Country-Specific Recommendation CVM Cooperation and Verification Mechanism DPS Bulgarian Movement for Rights and Freedom ECR European Conservative and Reformists Group EFDD Europe of Freedom and Direct Democracy ENF Europe of Nations and Freedom EP European Parliament EPP European People’s Party EU European Union Fidesz Hungarian Civic Alliance/Magyar Polgári Szövetség FPÖ the Freedom Party of Austria/ Freiheitliche Partei Österreichs GAL Green-Alternative-Libertarian GERB Citizens for European Development of Bulgaria Greens/EFA Greens/European Free Alliance GUE/NGL European United Left/Nordic Green Left MEP Member of the European Parliament MFF Multiannual Financial Framework NA Non-attached members of the European Parliament NCJ National Council of Judiciary NJO National Judicial Office ODS Civic Democratic Party/Občanská demokratická strana (Czechia)

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ABBREVIATIONS

ÖVP PDL PiS PSD PSL RLD RLF RLR RQM S&D SGP SMER SPD TEU TFEU

Austrian People’s Party/Österreichische Volkspartei Democratic Liberal Party/Partidul Democrat Liberal (Romania) Law and Justice Party/Prawo i Sprawiedliwos’c´ Social Democratic Party/Partidul Social Democrat Polish People’s Party Rule of Law Dialogue Rule of Law Framework Rule of Law Report Reverse Qualified Majority Socialists & Democrats Stability and Growth Pact Social Democracy (Slovakia) Social Democratic Party (Germany) Treaty on European Union Treaty on the Functioning of the European Union

List of Figures

Fig. 2.1 Fig. 4.1

Fig. 4.2

Fig. 5.1 Fig. 5.2

Fig. 5.3 Fig. 5.4 Fig. 5.5

The rule of law dimensions. (Source: Adapted from Moller and Skaaning (2014)) 38 Member states which have received CSRs as part of the European Semester. (Source: Author’s own compilation, based on data provided in the EU Justice Scoreboard and CSRs since 2011)110 Member states for whom challenges related to their justice systems were mentioned in the Recitals of the CSRs as part of the European Semester. (Source: Author’s own compilation, based on the CSRs issued by the Commission for each member state since 2011) 111 The evolution of debates in the EP on the situation in member states since 2010 130 Rule of law in Hungary. Vote on the provision included in the resolution 2012/2130(INI) 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary stating that “the Commission, Council and Parliament should designate representatives to assess Hungary’s compliance with Article 2 TEU”. (Source: VoteWatchEurope for this book) 141 Rule of law in Hungary. Vote on the provision of triggering Article 7 TEU in the 2015 EP’s resolution (16/12/2015). (Source: VoteWatchEurope, commissioned for this book) 144 Rule of law in Hungary. Vote on the provision mentioning Article 7 TEU in the EP’s 2017 resolution (17/05/2017). (Source: VoteWatchEurope for this book) 145 Rule of law in Hungary. Vote on the EP’s 2018 resolution (12/09/2018). (Source: VoteWatchEurope for this book) 147 xvii

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List of Figures

Fig. 5.6 Fig. 5.7 Fig. 5.8 Fig. 5.9 Fig. 5.10 Fig. 5.11 Fig. 5.12 Fig. 5.13 Fig. 7.1

Vote on the EP’s 2020 resolution on the general situation in Bulgaria (8/10/2020). (Source: VoteWatchEurope for this book) 148 Vote on the 2018 EP’s resolution on the situation in Romania (13/11/2018). (Source: VoteWatchEurope for this book) 152 Vote on the EP’s 2017 resolution on Malta (15/11/2017). (Source: VoteWatchEurope for this book) 153 Vote on the EP’s 2019 resolution on Malta (18/12/2019). (Source: VoteWatchEurope for this book) 154 Vote on the EP’s 2016 resolution on Poland (13/04/2016). (Source: VoteWatchEurope for this book) 155 Vote on the EP’s 2020 resolution on Poland (17/09/2020). (Source: VoteWatchEurope for this book) 157 Vote on the EP’s 2020 resolution on the situation in Czechia (19/06/2020). (Source: VoteWatchEurope for this book) 159 EP’s vote on the establishment of an EU Mechanism on democracy, the rule of law, and fundamental rights (06/10/2016). (Source: VoteWatchEurope for this book) 165 EP’s vote on the application of Regulation 2020/2092 (25/03/2021)234

List of Tables

Table 1.1 Typology of rule of law policy instruments designed for EU member states 13 Table 1.2 EU’s policy tools in arenas of consensus, contestation and dissensus18 Table 1.3 Who governs? 24 Table 2.1 The core dimensions of the rule of law—checklist established by the Venice Commission 58 Table 2.2 Analytical grid: principled consensus, outright dissensus, and experience-­based contestation over the rule of law 60 Table 4.1 The strategies used by the Commission in shaping EU’s rule of law policy 99 Table 4.2 European Semester: member states with CSRs concerning their justice systems 109 Table 5.1 Discursive coalitions in the European Parliament. Debate on the situation in Hungary 136 Table 5.2 Polarised understandings of the rule of law in the EP 139 Table 5.3 Rule of law. Discursive coalitions in reverse in the EP 150 Table 5.4 Consensus/Dissensus over shaping the EU’s rule of law policy in the EP 164 Table 6.1 Policy tools and outcomes in the Council 173 Table 6.2 The rule of law on the agenda of the Council 179 Table 7.1 Selective case law on the rule of law and the principles which the rule of law entails 204 Table 8.1 Consensus, contestation, and dissensus in rule of law consultations and ECIs 245 Table 8.2 Les Assises de la Justice 2013. Rule of law dimensions put forward by civil society organisations 247 xix

CHAPTER 1

The Gradual Establishment of an EU Rule of Law Policy in Times of Dissensus

1.1   Introduction Thirty years ago, debates about the rule of law were the purview of scholars, and promoters of democracy, be they international and regional organisations or think tanks and epistemic communities. For a long time, “no other single political idea has ever achieved global endorsement” (Tamanaha, 2004, p. 4). At the beginning of the 1990s, the rule of law was “the preeminent legitimizing ideal” (Tamanaha, 2004, p. 3) encapsulating the old idea that the main function of the law is to protect each member of society, preventing their rights and liberties from being encroached on, within a framework to which all conduct and behaviour must conform. The rule of law is valued in many parts of the world as it implies the rejection of tyranny, and thereby also rejects the partial and arbitrary enforcement of the law. The rule of law means more than this, not only because it is a compound principle, covering many other principles, but also—and more importantly—because it is not a stand-alone value, but it is related to democracy and rights, capturing also the value of security in law and equal enforceability (Teitel, 2000, p. 18). Today, the rule of law makes the headlines every day in different parts of the world, including the European Union (EU). An age-old value which has been the focus of many scholars’ writings since Plato and Aristotle has been gaining increased attention, in crescendo, over the past © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_1

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decades. The global commitment to the rule of law is now fading, and the EU is no exception to this trend. On the contrary, since the 2010s, we have been witnessing the fast dismantlement of the pillars of liberal democracy, including the rule of law, in a number of member states of the Union (Müller, 2015; Kelemen & Blauberger, 2017). The EU has entered a new stage, corresponding to the shift from consensus (be it a “façade” consensus, overemphasised or idealized in the 1990s) to dissensus over liberal democracy and its core principles, including the rule of law. How is the EU responding when the rule of law, one of the common values enshrined in Article 2 TEU, is under strain? This book examines the gradual establishment of a rule of law policy at the European level since the 2010s, when the governments of some member states have limited the independence of their judiciaries. Despite criticism, EU institutional actors have been slow to react. A series of soft and hard policy tools have been designed incrementally over the past ten years, not without difficulty, and with little result in practice. The rule of law is still a matter of controversy between the EU and some member states which seem to be stuck in a conflict which has no exit. Yet something is noticeable: the new policy tools established tend to mark a shift from governance to more integration in core state powers (Genschel & Jachtenfuchs, 2014). In this book, I argue that the emerging rule of law policy at the EU level is shaped by a clash between liberal and anti-liberal ideas, and this marks a shift from the overemphasised rule of law consensus (idealised in the 1990s) to increased dissensus and contestation (since the 2010s). The ongoing rule of law debate in the Union reflects a multilevel conflict over power, authority, and sovereignty which pits irreconcilable visions against each other. Against this backdrop, this book shows how dissensus over this value constrains the EU’s capacity to act, how dissensus shapes the ideas on which the policy tools designed to douse the flames of the rule of law crisis are based on, and, ultimately, how said dissensus shapes power relations determining who governs in the end and how. While the concept of dissensus allows to shed light on the policy preferences of the main actors, the book draws on theories from EU studies—namely the new intergovernmentalism, the new supranationalism, and the new parliamentarism— to show how dissensus shapes power relations and who gets what and how. The chapter ends with a section discussing the data collection and its structure, with each chapter allowing the reader to tackle politics of the rule of law from a different angle.

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1.2   The Assault on Judicial Institutions on the Agenda of the EU How did we get here? One year after Poland’s accession to the EU, in 2005, the conservative Law and Justice Party (Prawo i Sprawiedliwos’c’— PiS) obtained 27% of the votes in the Polish parliamentary elections. The party came to power blaming elites and glorifying the virtue of the people, emphasising the extreme “crisis” of Polish democracy, decrying the moral decay and widespread corruption within society. From 2005 to 2007, the relationship between the executive and the judiciary in Poland was tense. The Constitutional Tribunal in particular, and the judiciary in general, became the subject of constant attacks from the new ruling coalition. In a speech given by the president of the Republic Lech Kaczynski in 2007, judges were accused of only considering “the interest of their corporation over moral principles” (Bodnar & Bojarski, 2011, p.  730), and for this reason, the Minister of Justice Zbigniew Ziobro (former member of PiS, now a member of the ‘United Poland’ party) sought to introduce disciplinary proceedings against judges. Yet this tense relationship between political and judicial actors remained rather confined to domestic debates. The rule of law erupted more acutely on the agenda of the EU in 2010 when all institutions were seeking to save the Euro. In 2011, the Hungarian Parliament—where Viktor Orbán’s party Fidesz (Magyar Polgári Szövetség) had a two-thirds majority—passed a new constitution (fundamental law), eliminated a large number of the checks and balances, weakened the parliament’s prerogatives, and limited the independence of the judiciary (Buzogány, 2017, p.  1313). The draft of the new constitution, which introduced a conservative preamble, was prepared behind closed doors and, within the space of about one month, on 18 April 2011, the constitution was adopted by the parliament (Jakab & Bodnar, 2021, p. 106). In the name of parliamentary sovereignty, Fidesz truncated the powers of the Constitutional Court, excluding from its jurisdiction, for example, cases about the state budget, taxes, duties, contributions, and tariffs (Jakab & Bodnar, 2021, p. 110). The Hungarian government changed the rules for nominating judges at the Constitutional Court. Respected and powerful in the first years of the democratic transition in Hungary, the court was considerably weakened (Bugaric & Ginsburg, 2016, p. 73). On the other hand, the Hungarian government also passed new laws on the organisation of the judiciary and the National Council of Judiciary (NCJ), contending that the NCJ’s decisions were being influenced by

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corporatist interests. A new institution was created, the National Judicial Office (NJO), whose president was elected for a nine-year term and was granted the power to “reassign specific cases from the courts where they are assigned by law to any other court in the country” (Bankuti et  al., 2012, p. 143). The government also decided to retire 274 judges as well as, in 2011, prematurely terminating the mandate of the former president of the Supreme Court who had been elected for six years staring from June 2009. As Bankuti et al. have pointed out, the ordinary judiciary has lost a great deal of its independence (2012). From 2011 to 2013, the entire constitutional system of Hungary was changed (Jakab & Bodnar, 2021, p. 110). Fidesz established a centralized core executive (Buzogány, 2017, p. 1314). At the beginning of 2010, Hungary was emerging as the “most radical example of political resentment against legal constitutionalism” (Blokker, 2014, p. 151). In Italy too, in 2011, Prime Minister Silvio Berlusconi, then still facing many lingering allegations of corruption, announced a comprehensive reform of the judiciary implying the revision of the Italian Constitution. While this reform was meant to respond to citizens’ needs, in a context in which corruption in the Italian judiciary had been pointed out by the World Justice Project Rule of Law Index, critics deplored the fact the main beneficiary of the envisaged change would be the prime minister himself, who was facing trial on charge of corruption and tax fraud among others (New York Times, 10/03/2011). It was not for the first time that Berlusconi was declaring “war” on judges (Della Porta, 2001). He presented himself as a victim of “political vendettas” conducted by Italian magistrates (New York Times, 8/10/2009), in particular, in relation to the time when the Italian Constitutional Court overturned “a law that granted immunity from prosecution to the holders of Italy’s highest public offices, the Prime Minister among them” (Quigley, 2011, p.  435). Prime Minister Berlusconi pushed another measure conferring immunity on him, but the Constitutional Court fought back (Quigley, 2011, p.  436). In October 2009, The Economist described Berlusconi’s legal reform efforts as “an unprecedented assault on Italy’s post-war legal order”. Yet, as Cristina Dallara explains, although many reforms were announced, no substantial change was accomplished during Berlusconi’s mandate. Nevertheless, she adds, Berlusconi’s anti-judicial rhetoric has contributed “to exacerbating the polarisation between two opposite views of the justice system in Italy” (Dallara, 2015, p. 59): “giustizialisti” and “garantisti”, the former arguing that corruption is the country’s main

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problem, the latter deploring the fact that an “inefficient judiciary” is “tormenting the innocent and the guilty alike” (Momigliano 29/09/2021). Justice has since remained a topic on the Italian political agenda, and was also sporadically present on the agenda of EU institutions at that time. In 2012, in Romania, the Social Democrat Prime Minister Victor Ponta was accused of disregarding the constitution, removing officials from key positions, and threatening judges, as reported by the European Commission in 2013. Romania was witnessing a failed “constitutional capture” (Müller, 2015), resulting from heightened tensions between the president, Traian Basescu, and the prime minister who blamed each other for overstepping their roles, the latter seeking to impeach the former. The year 2012 was a time of constitutional battles for the Romanian Constitutional Court (Blokker, 2014, p. 158), and the court asked “for help” to the Council of Europe’s (CoE) Venice Commission and the EU. In Romania, the justice system makes the headlines every day, some developments gaining international visibility. For example, in January 2017, through governmental decree (OUG 13), the Social Democratic government of Prime Minister Sorin Grindeanu amended the Criminal Code, decriminalizing certain facts of corruption to the benefit of the leader of the Party (Partidul Social Democrat, PSD), Liviu Dragnea, and all this while the country is still under the scrutiny of the Cooperation and Verification Mechanism (CVM) of the EU. The government argued that the measure was meant to take into account some European provisions (Directive 2016/343) and rulings of the Romanian Constitutional Court. Judges called on the government to avoid adopting such measures without public consultation. There was no urgency, at least not for the reasons invoked by the government. Massive protests sparked in Bucharest and many other cities in a very cold winter, Romanians deploring the fact that such important measures were being adopted “during the night, like robbers”. The OUG 13 had been revoked in February 2017, yet the saga continued. In February 2019, the PSD government adopted by decree a series of measures changing the rules regarding the nomination of various categories of judges and reinforcing a disciplinary jurisdiction, all with the government’s declared aim of curbing abuses committed by magistrates and legal/constitutional conflicts surrounding the cooperation of the Romanian Intelligence Service and the National Prosecutor’s Office (Tănăsescu, 2019). Yet critics argued that the measures planned by Tudorel Toader, justice minister, were meant to protect the most prominent figure

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of the PSD, Liviu Dragnea, then president of the Chamber of Deputies, who was in the end sent to prison for corruption in May 2019. These developments did not escape comments from the European Commission, which pointed out the effect of these changes on judicial independence and their cumulative effect (Pech et al., 2019). The rule of law debate remained a sensitive topic at the EU level amid the migration crisis in 2014. In 2015, PiS won parliamentary elections in Poland and came back to power with a program of reforms labelled “The Good Change” (Wroblewska, 2021, p. 137). Once in office, the government’s first measures targeted judicial institutions like in 2005. For example, the Polish Constitutional Tribunal—a model in the transition to democracy like the Hungarian Constitutional Court—was paralysed as a result of a conflict over the nomination of judges between the previous government led by the Civic Platform and the new one PiS administration (Sadurski, 2019). In violation of the constitution, the Polish PiS government also rewrote the legislation pertaining to the independence of the judiciary which was a condition of the country’s accession to the EU in 2004. From the PiS point of view, politics is above the law and, as they declared in 2015, also above the constitution because “the rule of the majority is not by the law” (Wroblewska, 2021, p. 137). The governments of Hungary—since 2010—and Poland—since 2015—have openly initiated a process of de-Europeanisation, understood here as repealing the legislation that was adopted in order to join the EU and replacing this with numerous new, contested provisions, thereby seeking to dismantle the political order established after the collapse of communism in 1989. Yet these are not the only cases which attract attention (see also Tomini and Gürkan, 2021). Over the past ten years, the domestic situations in Malta and Slovakia have become a matter of concern after the murders of the investigative journalists Daphne Caruana Galizia (in 2017) in Malta and of Jan Kuciak and his fiancée Martina Kucnirova (in 2018) in Slovakia. In Bulgaria and Czechia, there have been allegations of corruption involving the countries’ Prime Ministers Boyko Borissov (GERB party, Citizens for European Development of Bulgaria) and Andrej Babiš (ANO 2011 party, the name meaning “Yes” in English). The diffusion of the Panama papers and the murder of the investigative journalists have revealed links between organised crime and high-level political actors and a wide range of dysfunctions that would have sopped the accession of these countries to the EU had they happened ten years earlier. The rule of law debates in Romania, Malta,

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Slovakia, Czechia, and Bulgaria raise questions about contexts in which Europeanisation may have failed in the first place.

1.3   More than an Assault: A Clash of Liberal and Anti-liberal Ideas Conflicts between political and judicial institutions are common in any democratic regime. Yet what is at stake in the ongoing transformations in Poland and Hungary—which have put the question of the rule of law on the EU agenda—is more than conflict between politics and law over judicial institutions and their independence. The explicit assault on judicial institutions by the Fidesz and PiS reveals a clash between liberal and anti-­ liberal ideas. Liberalism—an “unchallengeable” concept (Krastev & Holmes, 2019, p.  5) at the beginning of the 1990s when it was proclaimed “the only game in town” and which found its most fervent advocates in Central and Eastern Europe (Zielonka, 2018)—now seems to be “the light that failed” (Krastev & Holmes, 2019). Former liberals like Viktor Orbán  have deserted the liberal cause (Zielonka, 2018, p. 6) embracing the “seductive lure of authoritarianism” (Applebaum, 2020). While in the 1990s, different streams of liberalism merged into a single pan-European project, uniting the centre-right and centre-left parties under the same label (Zielonka, 2018, p.  5), three decades later this consensus is fading, giving rise to increased dissensus. Democracy is deconsolidating (Mounck, 2018; Levitsky & Ziblatt, 2018) in different parts of the world, including the EU. Both the PiS and Fidesz parties are openly seeking to dismantle the post-1989 political order (Zielonka, 2018) through a comprehensive process of change, altering politics, policy, and politics (Coman & Volintiru, 2021), while the course of events is more incremental in other countries like Romania and Bulgaria. Viktor Orbán, fervent supporter of liberal democracy in the 1990s, announced in 2014 his ambition to institute an “illiberal democracy”, which is a contradiction in terms. Back in 2010, Orbán declared that Western liberalism and individualism are alien to the domestic political culture (Buzogány, 2017). In the same vein, in 2016, Ryszard Legutko, PiS member of the European Conservative Group in the European Parliament (EP), wrote his book The Demon in Democracy: Totalitarian Temptations in Free Societies, which was well received in intellectual conservative milieus in Europe and in the United States (Behr

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2021). In the text, Legutko contended that liberal democrats have silenced “all alternatives and all non liberal views of political order” (2016, p. 80). What is at stake is more than a conflict between law and politics. Anti-­ liberal ideas are pitted against the core ideas of liberalism: equality in the form of equality before the law and political equality (in terms of political rights); tolerance, which refers not only to pluralism but also to diversity in cultural and political forms; and, ultimately, constitutionalism, the idea of limited government (Heywood, 2019, p.  31). Not all of these core ideas are embattled with the same intensity. In Poland and Hungary, the PiS party and the Fidesz target the idea of limited government and constitutionalism to be able to implement a set of disputed conservative policies. Anti-liberal ideas also contain new and old conservative ideas about abortion, minority rights, migration, and gender issues (Coman & Volintiru, 2021). Both PiS and Fidesz are very much in favour of rights, yet they have a selective understanding of rights, often taking the side of the rights of the majority against the minority. As Justine Lacroix and Jean-Yves Pranchère have argued, today’s “cynicism” is not to see human rights “hypocritically brandished”, but to see them “bluntly contested”, often in the name of the people and sovereignty (2019, p. 13).

1.4   Irreconcilable Conceptions of Power, Authority, and Sovereignty Beyond the clash between liberal and anti-liberal ideas, I consider that the ongoing rule of law debate in the Union reflects a multilevel conflict over power, authority, and sovereignty in which irreconcilable visions are opposed with one another. These conflicts over the rule of law are, to a large extent, conflicts about sovereignty, authority, and power. In limiting the independence of their judicial institutions, both PiS and Fidesz claim their sovereign right to do so and “to take back control”. Brexit was based on the belief that EU membership was no longer compatible with a sovereign UK, and the Polish PiS and the Hungarian Fidesz also stand against EU’s attempts to centralise power, with the difference that they do not seek to leave the EU, but to transform it from within. “We are not existers” said MEP Legutko (PiS), “we are reformers” (Interview, 22 March 2021). In 2015, PiS proclaimed its internal sovereignty, that is, the sovereign right of “who governs”, vis-à-vis the Polish Constitutional Tribunal, which, from the PiS point of view, was a

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threat to state sovereignty (Sadurski, 2019). On 7 October 2021 the Constitutional Tribunal, which since 2015 has consisted mainly of judges appointed by PiS, proclaimed the sovereignty of the Polish Constitution over EU law in the judgement K3/21. In the European Parliament plenary on 19 October 2021, Prime Minister Mateusz Morawiecki reemphasised that “the supreme law of the Republic of Poland is the constitution”. Morawiecki was referring here to the same constitution that was violated in 2015, when PiS contested its supremacy in Poland, and, in the defence of which, many Poles and judges have since taken to the streets on many occasions. It was also in November 2021 that the Polish Constitutional Tribunal decided that the European Court of Human Rights has no power to question its appointment of judges (Reuter, 24/11/2021), stating that Article 6 of the Convention is not compatible with the Polish Constitution. One can argue that resistance to the EU has always existed (Davies, 2012; Walker, 2003). For PiS, the Union has become “a threat” to Polish sovereignty and values (Cadier, 2021, p. 9). While PiS seeks to restore a strong state against “Brussels”, Fidesz too contests its authority, constantly comparing the EU with Moscow in communist times. Understating sovereignty in this way has implications for the ways in which the two governments see the Union and its raison d’être. Fidesz stands against “modernization by imitation and integration by assimilation” (Krastev & Holmes, 2019, p. 7). It is “humiliating” to be “imitators” of the West, argues Maria Schmidt (Applebaum, 2020, p.  50), Viktor Orbán’s intellectual in chief, stating that Hungarians “don’t want to copy what the Germans are doing or what the French are doing” (…) but “to continue with our own way of life” (Krastev & Holmes, 2019, p. 6). Hence, PiS and Fidesz understanding of sovereignty—traditionally defined as an attribute of the State, absolute, perpetual (Bodin, 1993) and indivisible (Hobbes)—refers to the capacity to retain full internal control and external independence, that is the right of the state to exercise supreme authority within its territory and to control access to it, in the name of the people, yet a restrictive definition of it (Coman, 2022 forthcoming). Yet to establish a new political and legal order, the Union has been built on the ideal of “shared’ or “pooled” sovereignty (Moravcsik, 1998; Walker, 2003). In the EU polity, each holder of sovereignty is only the highest in its own sphere (Grimm, 2015, p. 114), although the Court of Justice, through its “quiet revolution”, established the primacy of EU law

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over national law (Weiler, 1994). While the Union functions on the principle of primacy of European law over national law, this is not enshrined in the treaties but is mentioned in a Declaration annexed to the Treaty of Lisbon. The issue of which jurisdiction has the ultimate authority has remained an open question. In accordance with Court of Justice of the European Union (CJEU) case law, primacy means that the EU treaties and the law adopted at the European level have primacy over national laws, under the conditions laid down by said case law (17. Declaration concerning primacy). Primacy might suggest that the CJEU alone has such authority; however, national courts are also the guardians of their constitutional orders (Stone Sweet, 2004, p. 91). In practice, the EU has been shaped through law (Vauchez, 2013) and through dialogue, rather than confrontational methods of settling conflicts (Grimm, 2015, p.  118), although national courts have often expressed dissent to legal integration (Davies, 2012). While some scholars have used the concept of “normative disorder” to describe this reality, others proposed the concept of “constitutional pluralism” (Shaw, 1999; Baquero Cruz, 2018) as a way of reconfiguring the idea of sovereignty in a polity beyond the state like the EU (Walker, 2003). Constitutional pluralism, understood as a non-hierarchical relationship between legal orders, implies that “states are no longer the sole locus of constitutional authority” (Walker, 2003, p. 4). The concept was intended as a way of rationalising “competing claims of final authority” (Fabbrini, 2014, p.  21), in a polity within which national and supranational sources of authority co-­ exist. Those who coined this normative view argued that constitutional pluralism should lead neither to a “new unity or fixed hierarchy of constitutional authority nor, at the other extreme, to a fragmentation of authority” (Walker, 2003, p.  4). The paradigm of constitutional pluralism is based on the idea of mutual recognition and interpenetration of constitutional sites located at different levels with dialogue as a mean “to manage conflict (…) in a process of mutual accommodation”, resulting sometimes in something far from an “idyllic interaction” between legal orders (Walker, 2003). If no party can undermine the others by appealing to its own sovereignty, the only possibility that remains is to debate opposing standing points (Grimm, 2015, p. 119). The process of constitutionalisation in the EU has been neither neat, nor linear nor devoid of conflict, yet when conflicts erupted, they have been resolved in diverse ways (Stone Sweet, 2004, p.  107). This clash of incompatible views—as the MEP

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Legutko (European Conservative and Reformists Group—ECR) put it— “will shape the EU in the years to come” (Interview, 22 March 2021). Thus, irreconcilable positions emerge when questioning the authority and the power of EU institutional actors. This also engenders a problem of legitimacy, considering that etymologically legitimare in Latin means “to declare lawful” or “rightfulness” (Heywood, 2019, p. 80; Beetham, 1991, p.  7). Authority is understood here as “legitimate power” or the “the right to do so”, while power is the ability to influence the behaviour of others (Heywood, 2019, p.  4). In other words, authority is “power cloaked in legitimacy or rightfulness, while power, in contrast, is a more dynamic concept, encapsulating the ability to achieve outcomes. Often understood as the “power to do something” (Heywood, 2019, p. 5), it is the ability to influence others, or “power over something” (Carstensen & Schmidt, 2016).

1.5   The EU’s Rule of Law Policy and Tools In the 2010s, the EU faced a decade of crises. It managed to act to save the euro (Schmidt, 2020a) and externalised the management of migration by signing a contested agreement with Turkey (Gürkan & Coman, 2021). It also concluded Brexit. In each crisis, the EU’s actions were disputed. Both the Eurozone and the migration crises confirmed that the EU is built on crisis, which is “something of a disciplinary cliché”, with crisis being understood “as a moment in which the limits of a system are exposed, generating functional pressure for adaptation and innovation” (White, 2020, p. 3; see also Brack & Gürkan, 2021, p. 3). Some scholars have even portrayed this as an “existential crisis”, with “most far-reaching implications for the European project because without common values, there are fewer reasons for the EU to exist” (Pech & Scheppele, 2017), deploring the EU’s inaction and the lack of political will to seriously address the dismantlement of the rule of law, arguing that the EU cannot turn a blind eye (Kelemen & Blauberger, 2017, p. 318) to the various manifestations of democratic backsliding within its member states. “The very survival of the European project” is at stake, as pointed out by the President of the Court of Justice of the EU Koen Lenaerts (Agence Europe, 6/11/2021). Yet the EU has been slow to react in the face of the assault on judicial institutions in Central and Eastern Europe. While the Polish and the Hungarian governments managed to adopt a significant number of measures in a relatively short period of time, limiting the independence of

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their judiciaries and straining the values on which the EU is founded, institutional actors at the supranational level have been divided about what to do, when, and how to act. Against this backdrop, the book addresses the following questions: How do EU institutions and domestic actors shape the rule of law policy? How does the European Commission fulfil its role as guardian of the treaties and agenda setter in the EU polity? How has the European Parliament (EP) sought to shape the EU’s rule of law policy tools? What is the role of the Council? What is the role of the European Council? How does organised civil society engage in the rule of law debate? Which understandings of the rule of law are promoted? What are the preferences and motivations of the main actors? Who governs in a fragmented polity like the EU? And in the end, what rule of law policy is emerging? To address this set of interrelated questions, the book examines the EU’s emerging rule of law policy—which corresponds to the gradual institutionalisation of policy tools at the EU level—as a process taking place in different institutional arenas (Leca, 2012) and looks deeper into the politics of the rule of law at different moments in time since 2010, exploring how the rule of law is understood, who gets what, and how in its reconfiguration beyond the state. Rule of law policy is understood here as what happens when the EU deals with “problems” (Leca, 2012). Policies are made and are pursued through policy instruments (Capano & Howlett, 2020)—and these policy instruments “include a wide range of tools and techniques of governance”, used to deliver goods and services and to affect policy development (Howlett, 2000, p. 414). These reveal and produce a certain representation of the issues to be dealt with (Lascoumes, 2007, p. 77). They are a set of rules and procedures that governs the interactions and behaviours of actors and organizations. Policy tools matter; they determine how actors should behave (Lascoumes & Le Galès, 2007, p. 8). Often perceived as too technical, policy tools help us to understand the reasons for their use—that is actors’ motivations and preferences—as well as the capacity of institutions to act and address specific concerns. They also allow us to understand the action of the EU (Halpern & Le Galès, 2011) and, by the same token, power relations (Lascoumes & Le Galès, 2007). Policy instruments are of many forms. Scholars have made a distinguished between coercive tools/hard law and coordination mechanisms/ soft law, alongside tools based on cooperation and compliance, learning and socialisation which might lead to the transformation of actors’

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preferences (Saurugger & Terpan, 2016, p.  54). Some instruments are coercive (“sticks”), while others provide financial incentives to comply (“carrots”), or draw on communication techniques such as shaming and blaming, sermons or, alternatively, persuasion. Soft tools draw on soft law, which is not binding; hard tools draw on hard law and establish legally binding obligations (Terpan & Saurugger, 2021). In addition to considering the degree of coercion, Christopher Hood, in his book The Tools of Government (1986), established a taxonomy of substantive policy instruments distinguishing between the principal governing resources that are used, namely, nodality, authority, treasure, and organisation. Authority here implies the establishment of treaties, agreements, or the creation of advisory groups; nodality draws on information provisions and communication; treasure is about funding, while institution/organisation is about institutional reforms (Howlett, 2000, p.  420; Lascoumes & Le Galès, 2007, p. 14). As illustrated in Table 1.1, the rule of law policy instruments in the EU are both soft and hard. While the procedure established in Article 7 TEU represents the coercive instrument par excellence as well as the infringement proceedings which can be launched to ensure compliance with EU law, over the past decade a range of new soft tools have been created: the European Semester (2011/2012), the EU Justice Scoreboard (2013), the Rule of Law Framework (RLF, 2014), the Annual Rule of Law Report (RLR, 2020). Because most of these soft tools had little impact in practice, the end of 2020 culminated with the adoption of the Regulation Table 1.1  Typology of rule of law policy instruments designed for EU member states EU rule of law policy tools designed for EU member states Hard tools drawing on EU authority and treasure Article 7 TEU

Infringement proceedings Regulation 2020/2092

Soft tools drawing on nodality that shape behaviour through dialogue and persuasion Preventive tools Rule of Law Framework (2014) Coordinative tools European Semester (2010) Prescriptive tools EU Justice Scoreboard (2012) Assessment tools Annual Rule of Law Report (2020)

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2020/2092 on a general regime of conditionality for the protection of the Union budget. One should also add to this list the wide range of Resolutions adopted by the EP, as well as its own-initiative report on the Mechanism on Democracy, the Rule of Law and Fundamental Rights (DRF) and the Rule of Law Dialogue (RLD) established in the Council. Drawing on Hood’s taxonomy, one can distinguish between tools drawing on EU authority (such as infringements, Article 7  TEU and other provisions of the treaties, regulations, and directives), tools drawing on nodality (with the implication that behaviour is shaped through communication and information, such as the EU Justice Scoreboard, the Rule of Law Framework and the European Semester) and, ultimately, tools drawing on treasure—mainly on the EU budget (such as the Regulation 2020/2092). The book shows that the creation or use of each of these tools is the result of one or many political battles. Both soft and hard tools are highly contested, mainly with regard to their legality.

1.6   The Politics of the Rule of Law in Times of Dissensus The book’s overarching argument is that the dissensus over the rule of law shapes the EU’s related policy tools and policy more generally, and by the same token, the EU’s modes of governance and who governs. My key arguments here are as follows: 1. Dissensus constrains the EU’s capacity to act, both within each EU institution and between them. 2. Dissensus has an impact on how EU institutional actors understand and shape the EU’s rule of law policy (outcome). 3. Ultimately, dissensus also determines who governs, who manages to translate ideas into concrete policy tools, which has implications for the EU polity and its modes of governance. Politics here refers both to the process and the arena through which “people make, preserve and amend the general rules under which they live” (Heywood, 2019, p. 4). It is about the study of authority and the “authoritative allocation of values”, as Easton put it (1981), authoritative being understood as those values widely accepted by society. Politics is

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naturally about disagreement (Leca, 2012), and about competition between different “opposing forces reflecting a diversity of opinions, preferences, interests or needs” (Heywood, 2019, p.  2). Because politics is conflict, it implies a process of resolution through cooperation, through compromise, conciliation, and negotiation rather than through force. Consensus supposes an agreement about fundamental principles, which “permits disagreement” not on core issues, but rather on matters of emphasis or detail” (Heywood, 2019, p. 8). Consensus building is often associated with the idea of deliberation or deliberative democracy as defined by Jürgen Habermas (1996), and encapsulates the ideas of liberal constitutionalism and the rule of law (Rawls, 1987). For Rawls, deliberation is guided by “public reason”, that is the arguments proposed by citizens and their representatives. From this view, arguments must be “couched in terms capable of acceptance by all members of the polity” (Dryzek, 2000, p. 15). This type of deliberation is conducive to consensus, prized for its ability to accommodate difference, yet deplored for its limits as it reduces pluralism (Mouffe, 2016). In contrast to deliberation—which has connotations of “calm, reasoned, argument”—contestation is more controversial, more critical, and more expansive, as critics of deliberative democracy have pointed out (Dryzek, 2000, p. vi). Often conceptualised in terms of discursive democracy (as opposed to deliberative democracy, although the two are not mutually exclusive), contestation is “reflexive in its questioning orientation to established traditions” (Dryzek, 2000, p.  3). It targets power structures “including those that operate beneath the constitutional surface of the liberal state and so insurgent in relation to established institutions” (Dryzek, 2000, p. 2). Established with the aim of preventing conflict and war in Europe, the EU draws on consensus and cooperation to facilitate decision-making. Both consensus and contestation have shaped the integration process since its origins (Crespy & Saurugger, 2016). Yet what happens when liberal ideas are pitted against anti-liberal ideas? I argue that EU politics has entered a new stage that I see not as an expression of disagreement or contestation—which do not impede consensus— but as an instance of dissensus. Dissensus goes beyond disagreement. It can be disruptive if it challenges the very foundations of liberal democracy or precisely because it targets liberal democracy itself. Dissensus suggests a disruptive clash of contrasting, polarised views which are not deliberated but rather are irreconcilables, and pitted against one another. As conceptualized by Chantal Mouffe (2016), dissensus takes the form of a specific

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conflict which opposes actors with normative, antagonist views against one another. According to Mouffe, antagonist confrontations imply struggles between different conceptions rooted in conservative, social-­ democratic, liberal, neoliberal, radical ideas, and their confrontation are the essence of democracy (Mouffe, 2016, p.  100). In the EU context, Oleart argues, an agonistic conflict does not challenge the foundations of the EU, but it is often illustrated by the struggle between “social Europe” as opposed to “neoliberal Europe” (2021, p. 39). Antagonistic, in contrast, implies that actors do not perceive the EU as being legitimate, and here Oleart gives the example of Brexit in this regard (2021, p. 36). While the concepts of agonistic and antagonistic conflicts have the merit of helping scholars uncover what is fundamentally at stake, I argue that the rule of law debate as triggered by the changes introduced by the PiS and the Fidesz governments goes beyond agonistic or antagonistic conflicts. Dissensus contests the essence of democracy, and is thus different from the agonistic conflict of democracy, as defined by Mouffe. For Mouffe, agonistic and antagonistic conflict do not mean eliminating passion or conflict, but mobilising such passions towards democracy (Mouffe, 2016, p. 101). PiS and Fidesz do not seek to strengthen democracy, but champion sovereignty in the name of a restrictive definition of the people, because they and only they are able to represent it (Müller, 2016, p. 3). Consensus is understood here as the ability to overcome conflicts, by raising and challenging arguments, thorough deliberation, and persuasion. Contestation is about expressing disagreements and contrasting points of view, yet without challenging the foundations of liberal democracy as such. Dissensus is characterised by its adversity to compromise, as opposed views remain irreconcilable. The purpose here is not to tackle the normative implications of these types of conflict, but to see how the EU is challenged by dissensus and to what extent this dissensus prevents consensus or fuels contestation. I prefer the concept of dissensus to politicisation, which has gained considerable attention in EU studies over the past decade. Politicisation (De Wilde & Zürn, 2012, p. 139; De Wilde, 2012) describes the process by which something becomes subject to public regulation, or the subject of public discussion (Zürn, 2016). It encapsulates the process by which European-related topics shift from being the focus of political elites’ decision-making arenas to the subject of mass politics (De Wilde & Zürn, 2012, p. 139). In a broad sense, politicisation mirrors political conflicts which do not take place behind closed doors but spread into the public eye (Statham

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& Trenz, 2012). Politicisation is defined as “an increase in polarisation of opinions, interests, or values and the extent to which they are publicly advanced towards the process of policy formulation within the EU” (De Wilde & Zürn, 2012, p. 140). Dissensus implies all this, yet I would argue that it designates a specific form of politicisation relating to extremely polarised views, as in the case under consideration, involving liberal versus antiliberal ideas giving rise to a clash of contrasting understandings ways of understanding power, authority, and sovereignty. Like politicisation, dissensus implies “rising awareness, mobilization and polarization” (De Wilde & Zürn, 2012, p. 140), but what distinguishes one from the other is the nature of polarisation. Politicisation implies disagreement, yet in EU studies, the term often refers to the idea of a conflict which does not alter the core of liberal democracy, but rather relates to matters of prioritisation, and most importantly substance. Dissensus here is about clashes between positions which are epistemologically irreconcilable. What I call ontologically irreconcilable is the idea of a “democracy without rights”, expression which does not deserve the label of democracy (Lacroix & Pranchère, 2019). The book shows that over the past decade, each EU institutional actor has been confronted with instances of dissensus, contestation, and consensus over the rule of law (Table 1.2). To begin with, the Commission is expected to fulfil its role in a context of dissensus and “scarce appetite” from member states for a more active role in scrutinising domestic compliance with the rule of law. The European Semester (2011) was created to douse the flames of the Eurozone crisis, initially contested. The EU Justice Scoreboard (2013) also sparked some moderate contestation at the moment of its creation. The Rule of Law Framework established in 2014 was highly contested. Since 2010, the EP and the Council have been divided on what action to take. It has taken many years for the EP to move from dissensus and contestation to consensus over a general rule of law policy at the European level. When the rule of law debate started, the Council remained silent for a couple of years. Now the topic is being addressed, insistence from both the EP and the Commission that the Council play its role mean that dissensus and contestation have tended to prevail, preventing the Council from reaching a position. In the Council, dissensus prevented deliberation and persuasions. Dissensus, contestation, and consensus have also emerged within organised civil society, both in consultations organised by the Commission and in European Citizens’ Initiatives, launched to safeguard the rule of law. The increased level of dissensus has led the Court of Justice to play a central role. While the book does not devote a specific chapter to this, different parts of the book do refer to some of the courts’ rulings.

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Table 1.2  EU’s policy tools in arenas of consensus, contestation and dissensus Institutional arena

Rule of law tools

European Commission

European Parliament

Council

European Council Organised civil society

Consensus, contestation, dissensus 2009–2014

2014–2019

2019–

Justice Scoreboard Contestation

–

–

European Semester Rule of Law Framework Regulation 2020/2092 Rule of Law Report Resolutions on domestic situations Pact on DRF Regulation 2020/2092 Rule of Law Framework Rule of Law Dialogue Article 7 TEU

Contestation

Contestation

–

Dissensus

Dissensus

Regulation 2020/2092 Consultation 2013 Consultation 2019 ECI 2015 ECI 2019

Dissensus & Contestation Contestation Dissensus & Contestation

Dissensus &Contestation

Dissensus & Contestation

Consensus Consensus

Consensus Consensus

Dissensus & Contestation Consensus

–

–

Silence

Dissensus & Contestation –

–

Contestation Dissensus & Contestation Dissensus & Consensus

Contestation Dissensus & Contestation Contestation Consensus

1.7   Who Shapes the EU’s Rule of Law Policy, and How? Who does shape the EU’s rule of law policy? Over the past decade, three conceptualisations have competed in providing contrasting explanations: the new intergovernmentalism (Bickerton et al., 2015), the new supranationalism (Dehousse, 2015; Bocquillon & Dobbels, 2014), and the new

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parliamentarism (Schmidt, 2020a). Each one describes major transformations in the EU’s modes of governance in contrasting colours. The Rule of Law Policy in the Shadow of the New Intergovermentalism Since the origins of the integration process, intergovernamentalists have argued that member states drive the integration process (Moravcsik, 1998). States established the European Communities which have grown into a European polity over time by sharing and pooling sovereignty to coordinate their behaviour, and to avoid problems of compliance with the rules that they collectively agreed for themselves. By establishing policy tools—designed for the rule of law or for others—the states delegate authority and empower supranational actors to play a role in interstate relationships (Moravcsik, 2018, p.  1650). For the new intergovernmentalists, since the beginning of the 1990s, the EU has been going through a phenomenon called the “integration paradox” whereby member states “neither want to further compromise their sovereignty nor want to refrain from advancing European solutions” (Puetter, 2012, p. 168). As member states are reluctant to cede further power to supranational institutions, there is a tendency towards “European integration without supranationalisation” (Puetter, 2012, p. 161). From this perspective, the European Council and the Council drive the integration process. To a large extent, the European Council designed the economic governance of the EU in the aftermath of the Eurozone crisis (Schmidt, 2020a; Hennette et al., 2019). As this book will show, it is also the European Council that has been responsible for shaping the emerging rule of law policy and its shift from soft tools to hard tools and from governance to more integration. Paradoxically supranational institutions have been complicit in this trend (Bickerton et  al., 2015). The chapter adds some nuance to this claim. The book indeed shows that rule of law debates at the EU level are very much dominated by the centrality of the European Council and the Council. The European Council has played a paramount role in the adoption of the Regulation 2020/2092, which is the central piece of the new rule of law governance, instructing the Council and the Commission on how to perform their roles in the ordinary legislative procedure, in

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particular in times of increased dissensus (or perhaps as a consequence of it). Intergovernmentalism infiltrates supranational decision-making, both in terms of process and outcome (see Chap. 7). Yet the formal and informal empowerment of the European Council is not without problems for democracy. Recognised as an institution by the Lisbon Treaty, the European Council is not supposed to exercise legislative functions. Nevertheless, in recent years, it has become a paragon of a “post-­ democratic autocracy” (Habermas, 2011, p. 14) in EU which needs to expand the foundations of its legitimacy (Habermas, 2013). While the EP has stood against the expansion of the European Council’s role, the Commission has been in a more difficult position (see Chap. 7). Beyond power relations between EU institutions, the book seeks to shed light on the positions of member states within the Council in rule of law debates, and to chart their alliances and preferences in terms of policy. My research shows that although some member states’ coalitions seem to be stable over time, they tend to slightly change depending on the issues at stake. In some instances, there is a clear East-West divide (as illustrated in the hearings as part of Article 7 TEU, for example, examined in Chap. 6), while in other cases, Central and Eastern European member and Southern European ones tend to find themselves on the same side (the Regulation 2020/2092 examined in Chap. 7 is an illustration of this). This said, the East-West divide, often invoked in the media, does shape policy. Yet, as the book shows, the idea of “East” and “West” does not match pure geography. In addition, one seemingly stable factor is the fact that member states that have problems in their judiciaries tend to be reluctant to support the empowerment of EU institutions, while states which perform well in terms of independence, effectiveness, and quality of justice are more likely to be involved in driving the rule of law agenda (Chap. 4). In other words, unsurprisingly, member states’ situations with regard to the functioning of the judiciary determine also their preference for a mode of governance based on a greater intergovernmental or supranational rule of law. Some states fit in neither pattern, and prefer to leave justice systems in the hands of the states.

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Ultimately, this book shows that in terms of understandings of the rule of law, member states rarely address the substance of this core value and principle. Dissensus and contestation over the rule of law are triggered by questions related to legality, consent, and control (dimensions discussed in Chap. 2), and these generally pertain to a thin/formal understanding rather than a thick one (see Chaps. 6 and 7). The Rule of Law Policy and the New Supranationalism For the new supranationalists, the Commission drives the EU’s decision-­ making process through its monopoly of legislative initiative. The European Commission ensures that EU law is observed by EU institutions and member states alike (Kochenov & Pech, 2016). Acting as a policy entrepreneur, the Commission is motivated either “by technocratic problem solving, by ideologically driven policy-seeking or by maximizing its own organisational competences” (Hartlapp et al., 2014, p. 5). Bauer and Becker argued that, in the context of the Eurozone crisis, the Commission has been empowered by member states in deliberate or unforeseen ways (Bocquillon & Dobbels, 2014, p. 213). The new supranationalists contend that the Commission has acquired greater powers of enforcement and strengthened its action capacity in terms of monitoring, assessment, and recommendations, leading to a subtle empowerment of the institution. Yet the Commission does not act in a vacuum, but in a complex framework. Scholars are often divided over the question of whether the empowerment of the institution results from its own action (as a policy entrepreneur seeking to assess its power and authority), or whether it comes from member states’ willingness to reduce the uncertainty about the behaviour of other governments (Schimmelfennig, 2015). The book unveils the complexity of this relationship and shows that, despite the Commission’s attempts to increase EU’s capacity to act, its actions are constrained by member states’ preferences in the Council and in the European Council. In the rule of law debate, “the Commission anticipates the positions within the Council and the European Council” and also within the EP, whether in relation to procedures in Article 7 TEU (Closa, 2019, p. 697) or other policy tools. The book shows that instead of acting “by stealth”, the Commission acts more cautiously, particularly in contexts where increased dissensus has led to the contestation of the legal basis (the essence of the rule of law) of its action. In shaping the rule of law policy, the Commission strategically seeks to base its actions

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on explicit legal bases (Closa, 2019, p. 702), when the said legal basis is questioned by member states, the Council, and its Legal Service. The Commission’s entrepreneurship alone does no longer suffices (Terpan & Saurugger, 2021, p.  42); it requires larger support. Yet over the past decade, the Commission has been accused, for example, like during the Eurozone crisis, of doing “too little, too late” or “too much, too soon”, with the European Council, at the top, shaping “ultra vires” the overall direction of the policy (see Chap. 7). As this book shows, this cautious approach (see Chap. 4) has been criticised both in the EP (Chap. 4) and in the Council (amongst those camps that oppose any rule of law policy at the EU level) and among organised civil society (see Chap. 8). In terms of understanding rule of law, the book shows that the Commission has gained considerable savoir-faire in developing rule of law policy tools designed for the EU’s internal and external policies. Since the beginning of the 1990s, in the Eastern enlargement context, the Commission has sought to shed light on the normative foundations of the rule of law (Hillion, 2016), to a large extent borrowing ideas from other regional/international organisations while trying to adapt them to the specificities of the EU polity (Chap. 3). Since 2010, while putting forward new policy instruments, its core ideas have been largely rooted in the economic and legal foundations of the EU, privileging a thin rather than a substantive understanding of the rule of law, but marking shift from governance to more integration. The Rule of Law and the New Parliamentarism The EP, being directly elected by European citizens, is the classical channel of democratic (popular) representation in the EU polity. It serves as an arena that brings together proponents of different ideological and national views (Ripoll Servent, 2018, p.  3). Established in the 1950s with little power to shape decisions (Héritier et al., 2019, p. 18), prone to “issuing big declarations without impact on decision making” (Ripoll Servent, 2018, p.  7), the EP has experienced a gradual empowerment since the 1970s (Costa, 2001). The EP is the epicentre of deliberation, and is the forum where contrasting views of European integration come to the fore. As the only directly elected institution, the EP plays a role in representing the interests of the citizens of the Union. Traditionally the EP has tried to consolidate its prerogatives by becoming an “equal partner” in EU decision-­making (Kohler, 2014). Despite its gradual empowerment, many

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still see it as a “talking shop”. Although its effective power remains disputed (Schmidt, 2020a, p.  209), the EP has become an accountability forum, in which not only EU institutional actors but also representatives of national governments account for their action. For although the EP has the authority to shape policy, the book shows nonetheless that it has little power in its relationship with the Council and the Commission (Schmidt, 2020b), and, more recently, also vis-à-vis the European Council, which intrudes the ordinary legislative procedure. The EP has played a rather proactive role in shaping the rule of law policy, albeit with some difficulty. Its capacity to respond to democratic backsliding has been greatly affected by partisanship, ideology, and strategic interests. Debates on domestic situations in EU member states have been highly divisive, and Chap. 5 illustrates this increased dissensus and contestation, showing that the EP’s main political groups have managed to present a united front against the Commission and the Council on general issues, such as the establishment of a Mechanism on Democracy, the Rule of Law, and Fundamental Rights. In the EP, TAN parties tend to stand in favour of conservative policies, in the name of the people and of national sovereignty, self-determination and the respect of national traditions of member states, while GAL parties favour integration beyond the state as well as rights and values attached to liberal democracy (Hooghe & Marks, 2009). Despite ideological differences, the EP is largely in favour of a substantive understanding of the rule of law as opposed to minimalist/thin definitions. Despites its attempts to infuse a substantive understanding of the rule of law in the shaping of the EU’s rule of law policy/ governance, the Parliament’s power remains limited and its authority contested. On the one hand, internal divisions have weakened its role, while on the other, the growing role of European Council and of the Council limits the institutional power of the EP (see Chap. 7). Yet the EP does play a role in holding the Commission and the Council accountable. Table 1.3 summarises the lines of the analytical grid of the book Change Over Time and Dynamic Institutional Relationships Change over time matters. The book explores the rise of a rule of law policy from 2010 onwards, while situating the origins of this development in the post-1990 era. The time frame covers three terms of the EP (the seventh, eighth, and ninth legislatures), and three different Commissions under the presidencies of José Manuel Barroso (2009–2014), Jean-Claude

Organised civil society

European Commission European Parliament

High Dissensus

European Council Council

In search of consensus Dissensus and contestation → consensus Dissensus, contestation, and consensus

Contestation → mitigated consensus

Dissensus/ consensus

Politics as arena

Table 1.3  Who governs?

No legislative power Legislative authority

Authority

Legislative authority Substantive Legislative understandings of the rule authority of law Both thin and thick Participatory understandings are voiced depending on the arena

Thin understanding of the rule of law Limited to the economic and legal foundations of the EU

Understandings of the rule of law

Politics as a process—analytical dimensions

Representative, defending the interests of European citizens Participatory, voicing claims of organised civil society

Limited

Limited

Expert/technocratic

Representative, defending the interests of the states

Legitimacy

Limited

Strong, both in intergovernmental and supranational settings

Power over other actors

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Juncker (2014–2019), and Ursula von der Leyen (covering two years of her mandate, from 2019 to 2021). During this period, the justice sector has been under the responsibility of several commissioners, including Viviane Reding (2009–2014), and Frans Timmermans (2014–2019). Since 2019, rule of law-related policy areas have been attributed to both Commissioner Vera Jurova and Commissioner Didier Reynders. During this time, the European Council had been chaired by Herman Van Rompuy (2009–2014), Donald Tusk (2014–2019), and—at the time of writing—Charles Michel (since 2019). Over the past decade, the Commission has organised two major consultations on the rule of law: these happened in 2013 and in 2019, and both are analysed in this book. Two European Citizens’ Initiatives (ECI) were launched in 2015 and in 2019, and are also examined here (Chap. 8). Since 2010, 24 EU member states have held the reins of the rotating presidency of the Council, and each has demonstrated its own preferences in terms of how to deal (or not) with rule of law concerns (see Chap. 6). Since 2009, the way in which the Commission has sought to deal with rule of law concerns has also slightly evolved slightly. During the presidency of José Manuel Barroso, the Commission acted cautiously and designed a series of new tools with the aim of strengthening the EU’s rule of law governance and its own assessment capacity, while launching a series of infringements and avoiding triggering Article 7 TEU provision vis-à-vis Hungary. José Manuel Barroso limited the political activism of the Commission (Becker et al., 2016, p. 1015) and he “showed greater sensitivity to member governments and made more use of options other than ‘hard’ law” (Kurpas et al. 2008 quoted by Becker et al., 2016, p. 1015). Barroso promoted a more “disciplined and measured approach to policy, established quality control systems and implemented a better regulation agenda” (Becker et  al., 2016, p.  1015). As Schmidt has pointed out, Barroso was often seen as “a secretariat to the Council” (2020a, p. 179), “politically a neoliberal who maintained the fiction of an apolitical Commission” (2020a, p. 181), while being often accused of partisanship because of his seemingly mild attitude towards the Hungarian Prime Minister Viktor Orbán. While President Barroso motivated the action of the Commission using the argument of rationality, Jean-Claude Juncker was willing to act politically, not in partisan terms, as Dinan argues (2017), in general, if not on the rule of law issues. Taking office in 2014, Juncker reorganised the College, entrusting one of his vice-presidents, former Dutch Minister

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Frans Timmermans, to deal with the rule of law issues. During Juncker’s mandate, the Commission attempted to reach a consensus over the rule of law debate as much as possible (Dinan, 2017, p. 79). The soft tools established by Juncker’s predecessor were used however with little effect. Against this backdrop, the Juncker Commission put forward a proposal for a Regulation (2020/2092) linking the EU budget to the rule of law conditionality, trying to assess the authority of the EU and to offer a way out when soft tools seem ineffective. This has transformed into a seemingly never-ending saga, revealing all the complexities and consequences of dissensus and contestation. Neither José Manuel Barroso nor Jean-­ Claude Juncker managed to douse the flames of the rule of law crisis, and thus in 2019, Ursula von der Leyen inherited from her predecessors not only a set of tools and unresolved rule of law concerns but also a very sensitive proposal for a Regulation (2020/2092), which is discussed in Chap. 7. As the chapters of the book show, during the EP’s seventh term (from 2009 to 2014), EU institutional actors were not only divided but also rather reluctant to address rule of law concerns, and this for very different reasons. Some political groups inside the EP have been more divided than others. It took several years to see these groups converge towards a common position of defence against the Commission and the Council. It was only towards the end of the eight and still during the ninth term that the EP has managed to strengthen its power (in terms of group cohesion and to overcome intragroup fragmentation), and to overcome dissensus and contestation and to put forward a slightly substantive understanding of the rule of law, albeit still one that is constrained by the EU’s legal basis. The internal fragmentation inside the EP has also determined its alliances with the Council and the Commission. During the seventh term, a large majority of the EP members supported the Commission and the Council, and were reluctant to act; however, during the eighth and ninth terms, the alliances have shifted, and the EP has become more critical towards both the Council and the Commission. During the seventh term, groups inside the EP generally defined their positions, leading to a certain empowerment of the institution and crystallisation of ideas. During the eighth term, the EP was able to adopt its own vision regarding how to deal with democracy, the rule of law, and fundamental rights at the EU level, and this has been reiterated on many occasions during the ninth term. In addition, both in the Council and in the European Council, alliances have also

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shifted over time, as Chap. 6 shows, but overall dissensus has prevailed with an impact on the outcomes.

1.8   Structure of the Book The volume is organised in nine chapters. Each chapter can be read as a stand-alone one. Chapter 2 points out that debates over the rule of law have always been divisive. It discusses the meanings of the rule of law and proposes an analytical grid allowing us to understand which dimensions of this multifaceted concept give rise to consensus, contestation, or dissensus. Chapter 3 situates the emergence of the EU rule of law policy in the broader context of the constitutionalisation of values in the treaties, mainly through Article 2 and Article 7 TEU. It argues that the debates during the 2000s about the electoral success of Jorg Haider FPÖ’s party in Austria revealed certain procedural/legitimacy gaps of Article 7 TEU. This marked a window of opportunity to address them, yet the window closed without properly resolving the issue, despite some initiatives taken by the Commission and the EP in this regard. The following chapters then shed light on how, since 2010, each institution has sought to shape the rule of law policy, and how, ultimately, it is power that determines outcomes. Chapter 4 discusses how the Commission has established a series of soft policy tools over the past decade to deal with rule of law concerns in EU member states. These include the European Semester, the EU Justice Scoreboard, and the Rule of Law Framework. Not only has the political opportunity represented by such tools been contested, but also their legality. As the Commission’s legitimacy was vehemently contested by the governments of Poland and Hungary and also tacitly by other member states in the Council and groups in the EP, by establishing these tools, the Commission sought to assert its legitimised expert power, putting forward a thin rather than a substantive understanding of the rule of law. Chapter 5 shows that the European Parliament has been proactive in adopting resolutions about democracy, fundamental rights, and the rule of law in EU member states. Through its resolutions, the parliament has not only sought to hold the Commission and the Council to account; it has also engaged in shaping a new governance architecture, albeit not without difficulty. Outcomes have been shaped by partisanship, a left-right divide, and divisions generated by national/partisanship versus European

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interests. While debates on national situations have divided the EP, it managed to overcome divisions on more general issues such as the establishment of a Mechanism on Democracy, the Rule of Law, and Fundamental Rights, and in these cases was able to put forth a more substantive understanding of the rule of law. Chapter 6 focuses on the Council, where most of the debates about the rule of law have taken place behind closed doors. The Council has only reluctantly agreed to address this topic since 2014. Member states have adopted different roles as promoters of consensus, dissensus, and contesters, with variable positions depending on the topic. This chapter focuses on two main policy tools, which (without difficulty) found a place on the institution’s agenda: the establishment of the Rule of Law Dialogue (RLD) and its evolution, and the hearings organised as part of article 7 TEU with Poland and Hungary. This case illustrates the reluctance of the Council to deal with Article 7 TEU and its inability to “exit”, as well as the disputed transformation of the RLD from a purely intergovernmental tool towards one also involving the Commission. In the Council, dissensus impedes deliberation and persuasion. Chapter 7 examines the adoption of the Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget which is the most recent of the EU’s rule of law policy tools. Put forward in 2018 by the Commission in a context in which all the other tools used to safeguard the rule of law in EU member states had failed, Regulation 2020/2092 was supported by a large majority in the EP, yet it strongly divided member states in the Council who invoked both political and legal arguments to support or oppose it. Legality has been consistently invoked here since the very beginning. The Regulation was adopted thanks to the disputed compromise reached by the European Council in July and in December 2020, and it was challenged at the CJEU by Poland and Hungary (in March 2021). Because it has not been applied by the Commission (until December 2021), in October 2021 the EP submitted a lawsuit against the Commission over its failure to apply the Regulation. This chapter encapsulates the power struggles within the EU around shaping the rule of law policy, showing “who gets what and how”, by illustrating the growing role of the European Council in day-to-day decision making. Chapters 4, 5, 6, and 7 show together that legality has become a new form of resistance to EU integration. Chapter 8 scrutinises two different arenas of organised civil society engagement with EU policymaking. First, participations in consultations

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organised by the European Commission and second, two European Citizens’ Initiatives that deal with the rule of law. The chapter shows that neither participants in consultations (with some exceptions) nor ECIs seek to reduce the scope of action of the EU. On the contrary, they both support its empowerment in different ways. Yet while dissensus and contestation prevail in consultations, the ECIs were meant to fuel consensus towards more integration. Chapter 9 discusses the main findings. Overall, the book seeks to illustrate • the meanings of the rule of law as they are attributed by different actors; • the tools established to uphold the values on which the EU is founded, and more specifically the rule of law, which together constitute what I call a rule of law policy; and • the politics of the rule of law, that is power struggles between EU and domestic institutions and actors as well as the implications for the foundations of the EU. This book is not the only text to address this sensitive and timely topic. Over the past decade, agroup of leading academics, most of them involved in the Horizon 2020 Research project RECONECT—Laurent Pech, Carlos Closa Montero, Dimitry Kochenov, Kim Lane Scheppele, Petra Bard, Daniel Kelemen, Alberto Alemanno to mention but a few— have actively sought to shed light on the issues at stake. The publications on the topic featured on the Vergassungs blog https:// verfassungsblog.de/blog/ have provided rapid analyses of complex topics. Most of these rich accounts of the rule of law debate have been provided by legal scholars who, without neglecting politics, have looked deep into the law and politics dynamics, while clarifying complex legal and normative aspects. So while the rule of law debate has been addressed from different angles in different outlets, this book seeks to provide the reader with the full narrative. It seeks to shed light on the struggles leading to the adoption of each policy tool both within and between institutions. Theoretically, the book places the concept of dissensus at the centre of the analysis. While the concept of politicisation is often put forward in EU studies to shed light on the challenges of integration, I understand dissensus as a specific type of politicisation, one which opposes contrasting

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views, irreconcilable positions, and ontologically different views of power, authority, sovereignty, and the rule of law and liberal democracy. Dissensus is different from contestation, which does not imply a critique of the liberal democracy per se but rather of its substance. Consensus over the rule of law has been often taken for granted, in particular, in the 1990s. While the book is not able to establish exactly how consensual the rule of law really was before the 2000s (that would imply a different analysis), it does at least show what fuels dissensus and contestation in current debates with impact on consensus. Empirically, the aim here is not to establish a dominant narrative about rule of law and EU integration but rather to allow readers to better understand the EU’s politics and the emergence of its rule of law policy. Hence, the book explains the origins and the evolution of the EU rule of law policy—understood as a set of hard and soft policy instruments—as the results of increased contestation and dissensus over the rule of law. The book concludes that the EU’s rule of law governance “by stealth” shifts towards more integration “by publicity” (Genschel & Jachtenfuchs, 2014). Data and Methodology The book draws on content analysis and a very diverse body of empirical sources, including ten years of parliamentary debates, representing more than 600 pages, complemented with over 20 resolutions adopted by the EP and the votes in the Parliament since 2010. For the analysis of the votes in the European Parliament, I commissioned a report produced by VoteWatchEurope, and this data is used mostly in Chap. 5. The book analyses wide range of EU documents, such as communications of the Commission since 2000s, the conclusions of the European Council and documents issued by the Council, EU legislative proposals, as well as consultations organised by the Commission and two European Citizens Initiatives (ECI). Interviews were conducted in 2016 and 2017 with diplomats from different member states focusing on the European Semester, and, in 2021, with representatives of the European Commission, the Council, and the European Parliament focusing on Regulation 2020/2092, as well as general interviews with civil society representatives, judges, and prosecutors. The controversies over the rule of law encapsulate the challenges of the current stage of EU integration. Just as the rule of law shaped modernity and the process of state formation in different historical contexts, the

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current controversies surrounding this same principle and value mirror the current challenges of the establishment of a polity beyond the state. The rule of law has been invoked historically to protect citizens against arbitrary power by imposing constraints on sovereigns and by organising power and the contest for supremacy, and similarly, I argue in this book that the rule of law serves similar purposes in the current stages of development of the EU polity. While the foundations of the European project have been shaped by law (Vauchez, 2013; François & Vauchez, 2020) to create a new legal order for which member states agreed to limit their sovereignty, in the post-1989 phase of European integration, the rule of law has been central in shaping legitimate power and authority between national and supranational institutions in the EU polity. The book examines the politics of the rule of law against this backdrop.

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Müller, J.-W. (2015). Should the EU Protect Democracy and the Rule of Law Inside Member States? European Law Journal, 21(2), 141–160. Müller, J.-W. (2016). What Is Populism? University of Pennsylvania Press. Oleart, A. (2021). Framing TITIP in the European Public Spheres. Towards an Empowering Dissensus for EU intregration. Palgrave Macmillan. Pech, L., & Scheppele, K. L. (2017). Illiberalism Within: Rule of Law Backsliding in the EU. Cambridge Yearbook of European Legal Studies, 19, 3–47. Pech, L., Perju, V., & Platon, S. (2019, May). How to Address Rule of Law Backsliding in Romania: The Case for an Infringement Action Based on Article 325 TFEU. Verfassungsblog on Matters Constitutional. Puetter, U. (2012). Europe’s Deliberative Intergovernmentalism: The Role of the Council and European Council in EU Economic Governance. Journal of European Public Policy, 19(2), 161–178. Quigley, B. (2011). Immunity, Italian Style: Silvio Berlusconi versus the Italian Legal System. Hastings International and Comparative Law Review, 34(2), 435–464. Rawls, J. (1987). The Idea of an Overlapping Consensus. Oxford Journal of Legal Studies, 7(1), 1–25. Ripoll Servent, A. (2018). The European Parliament. Palgrave. Sadurski, W. (2019). Poland’s Constitutional Breakdown. Oxford University Press. Saurugger, S., & Terpan, F. (2016). Resisting ‘New Modes of Governance’: An Agency-Centred Approach. Comparative European Politics, 14, 53–70. Schimmelfennig, F. (2015). Liberal Intergovernmentalism and the Euro Area Crisis. Journal of European Public Policy, 22(2), 177–195. Schmidt, V.  A. (2020a). Europe’s Crisis of Legitimacy. Governing by Ruls and Ruling by Numbers in the Eurozone. Oxford University Press. Schmidt, V.  A. (2020b). Rethinking EU Governance: From ‘Old’ to ‘New’ Approaches to Who Steers Integration. In R. Coman, A. Crespy, & V. A. Schmidt (Eds.), Governance and Politics in the Post-Crisis European Union (pp. 94–115). Cambridge University Press. Shaw, J. (1999). Postnational Constitutionalism in the European Union. Journal of European Public Policy, 6(4), 579–597. Statham, P., & Trenz, H.-J. (2012). The Politicization of Europe: Contesting the Constitution in the Mass Media. Routledge. Stone Sweet, A. (2004). Governing with Judges: Constitutional Politics in Europe. Oxford University Press. Tamanaha, B. Z. (2004). On the Rule of Law. History, Politics, Theory. Cambridge University Press. Tănăsescu, E.-S. (2019, March 19). Romania – Another Brick in the Wall Fencing the Fight Against Corruption. Verfassungsblog on Matters Constitutional. Teitel, R. G. (2000). Transitional Justice. Oxford University Press.

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CHAPTER 2

The Core Dimensions of the Rule of Law: From Consensus to Dissensus

2.1   Introduction Many scholars have already brilliantly examined the intellectual origins of the concept of the rule of law, and its evolution over time and space. Drawing on some of this literature, this chapter aims to retrace how the rule of law has been forged over time from purely theoretical debates to being enshrined in national constitutions as well as treaties, declarations, and conventions of polities beyond the state. The concepts of law and the rule of law are intimately related. The former refers to a set of rules as general norms, guiding the conduct of action, defining the structure of power, and distributing authority among institutions, rights, and duties. The law orders the behaviour of individuals, and therefore plays a fundamental role in the establishment of political regimes and governance systems. Like the concept of law, the rule of law is also an old concept whose origins go back to ancient Greek and Roman philosophers that many contemporary scholars have presented as its “early advocators” (Tamanaha, 2004). Plato, in The Republic, argued that the best form of government was “rule by a philosopher king”, but he added that rule by law was a second option. Aristotle equated the rule of law with the rule of reason (Fallon, 1997, p. 1), and in The Politics, he contended that the rule of law was preferable to that of any individual (Chesterman, 2008, p. 333), arguing that even the guardians should obey the laws. Cicero too, © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_2

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in The Republic, condemned the king who does not abide by the law (Tamanaha, 2004, p. 11). From the Athenian polis in Ancient Greece and the Roman republics to the medieval cities and later from state formation to the establishment of polities beyond the state, like the EU, the rule of law has marked the evolution of different forms of political organisation. In Antiquity, philosophers mainly reflected on the role of the law, as well as ideas of good and justice. In the Middle Ages, conceptions of the rule of law matured and it was seen as a principle of organisation of power, leading to debates about the role of the law, the power of the monarchy, and how rule of law can be used to avoid arbitrariness and to protect rights. Later, the ideal of the rule of law has shaped modernity and, by the same token, the modern European state (Habermas, 2013, p. 50). This chapter shows that the debates over this principle have always been divisive in the contexts in which they emerged. Different understandings of the rule of law have crystallised over time, reflecting consensus/dissensus over some core dimensions (Moller & Skaaning, 2014, p. 17). These include the core or the nature of the rules (legality), its institutionalisation (who controls or who checks whether it is being its respected?), the source/consent of its institutionalisation (in the name of whom?), and its substance (why and with what purpose?). These four dimensions (Fig. 2.1) were coined in the realm of nation states, but this chapter shows how they have also shaped the process of establishment of governance structures beyond the state, including the EU polity. The chapter is organised as follows: Section 2.1 retraces the main traditions in which the concept is rooted. Section 2.2 looks at the diverse enshrinement of the rule of law in the constitutions of the EU member states. Section 2.3 focuses on the widespread consensus over the rule of law that emerged in the 1990s at the global level to shed light on the increased dissensus over the concept in recent years. Section 2.4 elaborates Rule of law

Control

Consent

Core/qualities of the law

Substance

Checks and balances

Sovereignty of the people

Formal legality

Negative vs positive rights

Fig. 2.1  The rule of law dimensions. (Source: Adapted from Moller and Skaaning (2014))

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an analytical grid by identifying three main attitudes vis-à-vis the rule of law: principled consensus, principled dissensus, and practice-based dissensus. This analytical grid will be used to understand how different dimensions of the rule of law—legality, control, consent, and substance—give rise to increased dissensus and contestation in the EU polity and how, in turn, this shapes the EU’s rule of law-related policy and tools.

2.2   The Rule of Law, a Multi-dimensional Concept Rooted in Different Traditions The concept of the rule of law has attracted considerable attention in the literature, as a central topic in political theory, law, political science as well as the sociology of law. This section is not meant to provide an exhaustive state of the art. It starts from the assumption that consensus, contestation, and dissensus over its core dimensions have been inherent to its evolution and are encapsulated in its core dimensions. These include the core or the qualities of the law (What is the rule of law?), its institutionalisation (Who controls its respect?), the source/consent of its institutionalisation (In the name of whom?), and its substance (Why and with what purpose?), as framed by Moller and Skaaning (2014), adapted and complemented for the purposes of this book in Fig. 2.1. Control and Checks and Balances Although mentioned by the philosophers of antiquity, the rule of law— which is the English translation of the Latin phrase imperium legum, meaning “the empire of laws not of men” (Sellers, 2014, p. 3)—took root in England in theory before it did in practice (Chesterman, 2008, p. 334), a fact which is worth bearing in mind for the current debates. In 1215, the Magna Carta established some limits on the exercise of power by the king and emphasised the role of the judicial process as a fundamental characteristic of the rule of law. It stated that “no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing […] except by the lawful judgement of his equals or by the law of the land” (Bingham, 2011, p.  10). The Charter was important as it expressed the fact that even the supreme power in the state must be subject to certain overriding rules (Bingham, 2011, p. 12). In the thirteenth century, the idea already emerged that the “king was subject to a law that he had not made but which made him king” (Krygier, 2009,

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p.  49). In the Middle Ages, the confrontations for supremacy amongst kings, popes, and nobles fuelled the debates about the role of the law, about rights and, more to the point, about the use of the law to restrain the power of kinds and to protect citizens against them (Tamanaha, 2004, p. 19). However, it was only in the seventieth century that the idea of the king himself being subject to law began to be taken seriously (Chesterman, 2008, p.  334). From the seventeenth century onwards, in the English tradition, the law was increasingly viewed as the product of the legislator; the sovereign was no legal superior to the sovereign legislator (Krygier, 2009, p. 49). The Bill of Rights Act (1689) proclaimed that it was “illegal” for the sovereign to suspend or dispense with laws, to establish his own court, or to establish taxes without parliamentary approval. Later, the modern British conception of the rule of law was attributed to the constitutional scholar Albert Venn Dicey (1885), who associated the rule of law with rights-based liberalism and judicial review of governmental action (Fallon, 1997, p. 1). Dicey was not the first to mention the rule of law per se, but he was the first jurisprudential scholar to provide a definition in his seminar Introduction to the Study of the Law of the Constitution published in 1885. While the precise meaning of the rule of law and its implications according to Dicey’s definition have remained controversial (Allan, 2003, p. 156), the concept is often associated with legality, equality, and liberty. In his definition, Dicey emphasised that “no person can be punished except for a breach of law”, stressing the supremacy of the law. He also stated that “no man is above the law” and that everyone, regardless of their rank and status, is subject to the “full range of the ordinary laws of the land”, putting forward the principle of equality before the law. Ultimately, he accentuated the importance of the legal spirit, as the rule of law limits the scope of power and prevents its arbitrary use in a system in which none is punished without proper trial. From this perspective, the rule of law—which was meant to ensure individual liberty—is the opposite of arbitrary power (Scheuerman, 1999, p. 59). Scholars who have studied the evolution of the concept in its different traditions underlined the important semantic difference between the expression “rule of law” in the British context and the same expression in many European languages (Krygier, 2014, p. 47): Rechtsstaat in German, Etat de droit in French, statul de drept in Romanian, statto di diritto in Italian, estate de derecho in Spanish, or panstwo prava in Polish. What the latter have in common is that they refer to the state (Palombella, 2014, p. 134)—meaning the “legal state”, which is the literal translation of the

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rule of law—not the rule of law per se. Each expression has its own specificities, being rooted in the historical, legal, social, and political context from which it emerged. On continental Europe, the above terms were coined at the end of the eighteenth century to capture the formation of the modern state and its monopoly of force. Yet it was only in the late nineteenth century that a more elaborated discussion emerged about the meaning and importance of the rule of law as an institutional system and a configuration of power (Chevallier, 2017). On the one hand, in the German tradition, Johan Wilhelm Placidus defined the Rechtsstaat, principle popularised in the early nineteenth century by Robert von Mohl (Nedzel, 2014, p.  296). The concept of Rechtsstaat succeeded the era of the despotic state and theocratic state to proclaim the supremacy of law. As Zolo argued, Rechtsstaat was actually established in Germany during the Restoration, which followed the 1848 revolts, and epitomized a compromise between liberal doctrine, supported by the bourgeoisie, and the authoritarian ideology supported by conservative forces, above all the monarchy, the rural aristocracy and the high military bureaucracy (2007, p. 11)

In the late nineteenth century, proclaiming the rule of law was a doctrinal attempt to domesticate the powers of the monarchical state “by restricting their exercise to the protection of life, liberty and property of the members of society” (Grote, 2014, p. 193). Robert von Mohl defined Rechtsstaat in opposition to the absolutist state where unlimited powers were conferred on the executive (Chevallier, 2017). For von Mohl, protection against absolutism had to be provided by the legislature rather than by the courts alone. The expression rule of law implied a form of state in which the latter was operating on the basis of legal rules to avoid arbitrariness of power or violence as a result of domination (Chevallier, 2017, p. 17). The law was a characteristic of not only the state but also its product (Tamanaha, 2004). The state was the source of law with the power to enforce it. Overall, the initial German understanding of Rechtsstaat was limited to its formal legality. Hans Kelsen took the concept forward, and in his understanding, the state and the rule of law were used interchangeably.1 1  Then, in Germany in the 1930s, the primacy of law was abused and failed to take into account the potential arbitrary use of parliamentary power.

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In France, on the other hand, Etat de droit is often associated with Montesquieu who in L’esprit des lois reflected on the concept in its relation to the separation of powers and civil liberties (Chevallier, 2017). The debate was vivid in the context of the French revolution, the separation of powers being part of a broader debate about sovereignty and the will of the people. The supremacy of the law was under discussion, emphasised by Jean-Jacques Rousseau, but “in the form of legislation as the expression of popular will and therefore not subject to any form of limitation” (Chesterman, 2008, p. 338). The concept was taken further and developed in the late nineteenth century and at the beginning of the twentieth century when several legal scholars reflected on its meaning. Among them, Carré de Malberg defined the rule of law by emphasising its finalité, positing that the law exists to protect individual rights and that the state is an entity that could act only through law, and could, through the concept of self-limitation, bind itself to its own norms (Chevallier, 2017). Like the German liberal jurists, Carré de Malberg “believed that the protection of individual rights against the state’s potential arbitrariness was the main aim of the Etat de droit which […] had to ‘self-limit’ its sovereign power by binding it to respect general and erga omnes (towards everybody) valid rules” (Zolo, 2007, p. 13). Against the backdrop of different historical contexts, the rule of law has evolved as a principle of political organisation (Chevallier, 2017, p. 17), been linked to the idea of limited government (Palombella & Walker, 2009), or seen as a principle which imposes legal constraints on governmental officials (Tamanaha, 2009, p. 4). From this perspective, arbitrary government can be prevented if the political order is governed by legal norms and the powers are divided between the executive and legislative powers and, ultimately, an independent judiciary (Allan, 2003, p. 31). It entails the idea of a separation of powers between the executive—charged with the formulation and application of public policy, which must act within the limits and for the general purpose stipulated by the legislature—and the judicial branch, that is, courts and tribunals which are independent of the executive, acting as “servants of the constitutional order as a whole rather than merely as instruments of a majority of elected members” (Allan, 2003, p. 3). Even the sovereign is bounded by higher laws, for example, through constitutions (Moller & Skaaning, 2014, p. 140). By determining the features of the political regimes through constitutionalisation, courts have been conferred the power to invalidate laws, regulations, and practices that violate constitutions (Chilton &

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Versteeg, 2018, p. 296). The attempts to reduce arbitrary power and to ensure citizens’ rights have empowered judges as guardians of the constitutions to ensure that governments will not overstep their powers (Chilton & Versteeg, 2018). Yet, the idea of the rule of law implies a balance between the legislative sovereignty and the legal sovereignty of the courts, as the final arbiters of the law (Allan, 2003). It is what stands between democracy and the tyranny of the majority (Weiler, 2021, p. 12). Consent: Who Decides Who Decides? The debate on the role of the law in the process of state formation has been intimately linked to the sovereignty of the people as the source of law (Tamanaha, 2004). Sovereignty has been traditionally defined as an attribute of the state, absolute, and perpetual, as Jean Bodin explains in Les six livres de la République (1993), or indivisible according to Thomas Hobbes in Leviathan (1651), to refer to its capacity to retain full internal control and external independence, that is, the right of the state to exercise supreme authority within its territory and to control access to it (Bellamy, 2003, p. 167). Hobbes argued that the rule of law was impossible, as to be subject to the law, the sovereign must be subject of a greater power, unless the sovereign is subject to another sovereign and so on (Chesterman, 2008, p. 335). Sovereignty is about the establishment of an institutionalised form of government able to impose itself on society as an instrument of legitimate power (Loughlin, 2003, p.  56). Often associated with the Treaty of Westphalia (1648), the concept of sovereignty was thoroughly discussed in the context of the American and French revolutions, not only in abstract terms, but also with regard to its institutionalisation. In the United States, Madison invented the idea of a sovereign American people to overcome the sovereign state, while in the French tradition, the debate was centred around the opposition between popular sovereignty (in the vein of Rousseau) versus national sovereignty (Siéyès). If the people were the sovereign, the paramount question at the centre of legal and philosophical debates is: who should exercise it in the name of the people (i.e., sovereignty) and who decides who decides (i.e., rule of law understood as a means to restrict state power and to pacify conflicts). Questions about “who should represent the people” and “who decides who decides” have given rise to different institutional configurations settled throughout constitutional processes, as higher sources of legitimacy.

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Madison and Montesquieu did not see this institutionalisation as a limitation of popular sovereignty but as an expression of it (Bickerton, 2012, p.  66). Sovereignty is institutionally located and the loci of power vary from one tradition to another. As an illustration, while the British constitutional tradition centres on the sovereignty of the parliament—which implies that no person or body who is recognised by the law has the right to override or set aside the legislation of the parliament (Bradley, 2011, p.  38)—the American Constitution did not endow the legislature with such powers but rather proposed constitutional review, without, however, establishing a judicial sovereignty. As Bickerton put it, “this conception of checks and balances, with a strong emphasis on non-majoritarian institutions […] serves as a guarantee against the formation of an overly strong executive” (Bickerton, 2012, pp. 66–67). Such limits were the expression of the popular will and encapsulated the idea that modern constitutionalism was a mean by which the people limited themselves. Differences exist. In some political regimes, the legislature is free from legal limitations, while in others, legislatures are subject to legal limitations, depending on the ways in which the will of the people finds expression institutionally. Thus, sovereignty is said to reside in the institution of parliament, while in other political contexts, it may dwell in the constitution (de Burca, 2003, p. 451). The emergence of constitutionalism emphasised that in a constitutional state, even legislative power is subject to law (Grimm, 2015, p. 68), echoing the liberal understanding of democracy in which civil and political rights are protected and government action is constrained by the law as it is interpreted and applied by independent judges (Allan, 2003, p. 2). None of the powers should be above the law, but more importantly popular sovereignty should prevail. In this configuration of power, judges are the guardians of the rule of law and “possibly the ultimate ramparts against the reign of the arbitrary” (Eloségui et al., 2021, p. vii). Thin and Substantive Understandings The rule of law encapsulates a set of formal (thin) dimensions, which relate to how a community is governed, and how the law must be applied, by whom, to whom, and with what purpose, encapsulating a positivist understanding of the law (Moller & Skaaning, 2014). Legal scholars have defined the rule of law as a multi-dimensional concept which comprises a series of formal and procedural principles such as generality, clarity, publicity, stability, predictability, and access to justice, that together govern a

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society (Fuller, 1969; Chevallier, 2017; Tamanaha, 2009, p. 7). As Craig has argued, formal conceptions of the rule of law address the way the law is promulgated, the clarity of the ensuing norm, and the temporal dimension of the enacted norm (1997). Fuller (1969) detailed the characteristics of the law as follows: Rules must be “publicly available, prospective, understandable, consistent, possible to perform, sufficiently stable for citizens to orient their actions by them and administered in ways congruent with their terms”. From this perspective, the “law is the skeleton that holds the liberal system upright and gives it form and stability” (Tamanaha, 2004, p. 37). These early debates about the rule of law have also gradually determined its main characteristics, that is, the law should be general (set in advance), equal (applied to all), and certain, so that those who are subject to the law can predict the rules governing their behaviour (Tamanaha, 2004, p. 66). The rule of law also implies that the law must be followed (Jowell, 2011) and legality must address the action of public officials, who must act within the powers that have been conferred upon them. The law should be certain and predictable, prospective, and not retrospectively applied, as encapsulated in the idea of legal certainty. These qualities constitute what Craig (1997) and others (Tamanaha, 2004) have defined as “thin”, “formal”, or minimalist understandings of the rule of law (Moller & Skaaning, 2014, p. 15). The rule of law also encapsulates a substantive dimension. The question of how to attain liberty and equality through the rule of law has remained key in intellectual debates. Ancient philosophers such as Plato, Aristotle, or Cicero argued in different ways that the law should be “for the good of the community” and that the law should preserve the safety and the happiness of its citizens (Tamanaha, 2004, p.  11); in other words, the law creates the conditions for citizens to attain society’s values. Greek and Roman philosophers argued that the good of the community depends on the ideal of equality before the law and on liberty under the law. Liberty and equality—the essence of democracy—have been at the core of this intellectual debate throughout centuries, in the writings of both right-­ oriented and left-oriented theorists (Lacroix & Pranchère, 2019, p. 19). On the one hand, the pursuit of liberty and equality dominated the political thought of the Enlightenment when the rule of law was at the centre of debates about the development of the political and economic capitalist development (Tamanaha, 2004). For John Locke, the main aim of law and politics was the preservation of property. Centuries later, authors like Hegel and Hayek emphasised how the rule of law contributed to the

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protection of freedom, arguing that the rule of law is a cornerstone of liberty (Allan, 2003, p. 37). On the other hand, liberty and equality have been also at the core of left theorists, who, drawing on Marxist critiques of private property, stood against the liberal conceptions of equality and liberty and against the role of the law in society which they saw as a powerful instrument to protect power and privileges (Tamanaha, 2004). Arguing in reaction to the promises of liberal thought with regard to the attainment of liberty and equality, from a left-wing perspective, theorists deplored the focus on individuals to the detriment of the community, contending that that law, as portrayed by liberalism, has led to domination and inequality, preventing the realisation of social welfare and substantive equality (Tamanaha, 2004). Substantive conceptions of the rule of law—also incorporating the formal understanding put forward in the previous section (Tamanaha, 2004, p. 99)—seek to go beyond thin conceptions (formal legality) to focus on rights. While the formal meaning of the rule of law limits itself to the qualities of law, the substantive dimension encompasses a larger vision of a good society (Krygier, 2014, p. 51). In its substantive meaning, the rule of law implies an accomplishment, and is more about what the law does than about how it is (Krygier 2014). In other words, from this perspective, the rule of law cannot be reduced to “a list of features of legal institutions, rules or practices” (Krygier, 2014, p. 55). The existence of the rule of law goes beyond the adoption of laws and is inextricably linked to democracy and rights. While the distinction between formal and substantive dimensions has helped scholars shed light on the diversity of the debates, some have argued that this differentiation is “artificial and unworkable” (Allan, 2003, p.  1). Substantive understandings of the rule of law rest on formal elements and vice-versa. Both formal and substantive understandings are meant to be rooted in democracy, as “without formal quality, democracy can be circumvented, but without democracy formal legality loses its legitimacy” (Tamanaha, 2004, p. 97). Put differently, a state which persecutes its people is not a state which respects the rule of law (Bingham, 2011). The rule of law—dissociated from democracy and the respect for human rights—is compatible with any political regime that is seeking to enforce an authoritarian order. History shows that most abuses of the law have been committed by officials who claimed to abide by the rule of law (Tamanaha, 2004). Therefore, the attainment of the rule of law requires more than the law alone. It should not be an end in itself (Nicolaidis &

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Kleinfeld, 2012) but rather a means leading to the attainment of other societal values (Krygier, 2009, p. 58; Palombella & Walker, 2009). To sum up, despite the different approaches presented here, the rule of law, as Zolo put it, is “the normative and institutional structure of the modern state” in which the legal system is “entrusted with the task of protecting individual rights by constraining the inclination of political power to expand, to act arbitrarily and to abuse its prerogatives” (2007, p. 11). In practice, the rule of law goes further than purely formal understandings as “there must be an adequacy between the content of the law and the imperative of justice” (Eloségui et al., 2021).

2.3   The Rule of Law in the Constitutions of the EU Member States After World War II, the rule of law has been enshrined in several constitutions, and has become a constitutional principle in its own right, both in domestic constitutional and in international law. Liberal constitutionalism emerged as the “default design for political systems”, based on written constitutions, judicial review for the protection of rights, elections, and the commitment to the rule of law—that is, a system that protects democracy and limits power (Ginsburg et al., 2018, p. 239). The rule of law is addressed differently in political or historical constitutions (such as those of the Nordic states, the Netherlands, or Malta), hybrid legal constitutions (in France, Belgium, Ireland, Austria, and Cyprus) and the post-totalitarian/post-authoritarian constitutions (such as those of Germany, Italy, Spain, Portugal, Greece, and former communist countries from Central and Eastern Europe). Political/historical constitutions are generally rooted in the predominance of the parliament and characterised by weak—or even absent—constitutional courts. In contrast, post-totalitarian and post-authoritarian constitutions “embody the ‘Never again ethos’” and put forward constitutional review by constitutional courts as well as detailed bills of rights (Albi & Bardutzky, 2019, p. 14). In other words, in the political or historical type of constitution, “parliament is supreme and an expression of the people’s will in line with the influence of the Enlightenment and the French Revolution” (Albi & Bardutzky, 2019, p. 14). In contrast, according to the two authors, in the countries that experiences totalitarianism constitutional designs “proceed from the understanding that democracy is not always capable of ensuring

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rights and the rule of law”, and hence “they have been removed from the realm of politics and are ensured by constitutional courts” (2019, p. 15). The rule of law is not mentioned per se in historical or political constitutions of Malta, the Netherlands, Luxembourg, or Denmark, although it underpins the entire edifice in each political system (Xuereb, 2019, p. 153; Bessekink & Claes, 2019, p.  196; Gerkrath, 2019, p.  238; Krunke & Baumbach, 2019, p. 280). The rule of law is mentioned in the Swedish Constitution in reference to the Law Council (Nergelius, 2019, p. 334); it was only enshrined in the Finish Constitution in 2000, although some of its dimensions—legality and access to courts—were referred to previously (Ojanen & Salminen, 2019, p. 380). The rule of law is also scarcely mentioned in the “hybrid” Constitutions of France, Belgium, Austria, Ireland, and Cyprus. In the French Constitution, the concept is not mentioned as such, yet it is grounded in Article 16 of the Declaration of the Rights of Man and of the Citizen and the main principles have been recognised and defined through case law in France (Burgorgue-Larsen et al., 2019, p. 1197). Belgium followed the French tradition as developed during the Enlightenment, according to which the rule of law is understood as the protection of citizens against the arbitrary use of power by public authorities (Popelier & Van de Heyning, 2019, p. 1239). The concept is not mentioned in the Austrian Constitution either, although the rule of law (Rechtsstaat) and human rights are amongst the basic principles of that document (Lachmayer, 2019, p. 1284). The rule of law is also absent from the Constitutions of Ireland and Cyprus, yet courts in the two countries have invoked some of the concept’s underlying ideas such as legality, the right to access to courts, legal certainty, and accessibility (Hogan, 2019, p. 1336). In contrast, with the exceptions of the Constitution of Italy (Martinico et  al., 2019, p.  504), the rule of law is explicitly mentioned—but not explicitly defined—in all the other post-totalitarian/post-authoritarian constitutions. In these countries, giving concrete meaning and expression to the main principles of the rule of law has been the remit of courts. The rule of law was enshrined in the Constitution of the Federal Republic of Germany on 23 May 1949, with the statement that “the constitutional order in the Länder must conform to the principles of a republican, democratic and social state governed by the rule of law within the meaning of this Basic Law”. This understanding of the rule of law, as discussed previously, echoes the historical meaning of a state that has “to rule not only by law but also according to the law”, meaning that “the state is not only the

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creator of the law that binds the citizens, but it also submits itself, including its highest organs, to the law” (Grimm et  al., 2019, p.  434). This consecration of the rule of law goes beyond the formal German understanding of the concept of Rechtsstaat to also refer to its substantive dimension, approaching the British significance (Chevallier, 2017, p. 65). Ultimately, the German understanding of the rule of law implies that “independent courts have the power to control whether the state complies with the law that binds its activity” (Grimm et al., 2019, p. 434). The Spanish and Portuguese constitutions also refer to the rule of law in different ways. The former refers to the separation of powers and the protection of individual rights, as well as legal certainty (Mullor & Torres Pérez, 2019, p. 553), while the Portuguese Constitution states that the Republic is a democratic state based on the rule of law, the sovereignty of the people, on the effective implementation of rights and freedoms as well as the separation and independence of powers (Pereira Coutinho & Piçarra, 2019, p. 606). While the rule of law has always been part of Greek constitutional culture, since 2001, the concept of the “welfare rule of law” has been considered “one of the fundamental principles of the state, along with the principle of democracy and the separations of powers” (Contiades et al., 2019). In most Central and Eastern European EU member states, including the Constitutions of Slovenia (Bardutzky, 2019), Slovakia (Vikarska & Bobek, 2019), Poland, Hungary, Estonia (Ernits et al., 2019), Latvia, Romania, Bulgaria (Tanchev & Belov, 2019), and Croatia, the rule of law is explicitly mentioned—if not always defined. For example, Polish constitutionalists did not define the rule of law, but indicated a set of core elements (Wroblewska, 2021, p. 135). One should note that in the 13 constitutions where the rule of law is explicitly mentioned, this principle is stated in relation either to the democratic character of the state or to rights and values. Many constitutions stipulate that the state is “governed by the rule of law” (Czech, German, Estonian, Romanian, Slovak, Slovene Constitutions), “based on the rule of law” (Latvian and Portuguese Constitutions), a “rule of law State” (Hungarian Constitution), a state “under the rule of law” (Lithuanian Constitution), a state “ruled by law” (Polish Constitution), or a state “subject to the rule of law” (Spanish Constitution). Another common trend, when the rule of law is mentioned per se, is for it to be referenced in relation to a democratic and “social state” (Germany, Romania, Slovenia, Spain), a state implementing “social justice” (Poland), a state which is “socially responsible” (Latvia) or a “welfare rule of law state” (Greece):

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this echoes a rather substantive dimension of the rule of law rather than a minimalist understanding.

2.4   The Value of the Rule of Law and Independent Courts The value of having the rule of law has been uncontested. The value of having independent courts (Klerman & Mahoney, 2005) has become a matter of “conventional wisdom”, implying that these are necessary prerequisites of the rule of law (Gloppen et al., 2004, p. 5). In states with codified constitutions, judges have been empowered to arbitrate disputes between the major institutions of government or between the state and the individual, with roles varying from one political regime to another (Stone Sweet, 2004) as the power of judges and their respective roles in relation with the executive and the legislature has been historically disputed (Kaluszynski, 2007). Since 1950s, the idea of “governing with judges” (Stone Sweet, 2004) was no longer seen as an “heresy” on the European continent and in particular on continental Europe (Magnette, 2000, p.  77). The centrality of judicial institutions for making power-­ holders accountable to the democratic game and for creating an environment conducive to economic growth has been emphasized with force. This phenomenon has been explained in many ways from different angles: one pertains to the empowerment of courts in the context of the successive waves of democratisation or the “rights revolution” and the rise of global litigation and the universalization of justice (Commaille, 2007); another approach is linked to the globalisation of the market economy (Dezalay & Garth, 2011). The latter viewpoint originates in the neo-­ liberal agenda of deregulation and privatisation and the new paradigm of economic development, and proposes the reform of the state in which political institutions are determinant variables for effective economic growth (Douglass, 1990). Judicial institutions have become central to democratic political regimes (Cappelletti, 1990) and judicial independence is now a “crucial quality of legal systems and inherent in the notion of judging” (Garoupa & Ginsburg, 2009). In Western Europe, this gradual process empowering judges has taken place simultaneously at the national and at the supranational levels. At the supranational level, on the one hand, the EU has been a “laboratory” for the concept of independence (Vauchez, 2020, p. 5) and, more

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recently, for the rule of law, as the book shows. As far as the former is concerned, the process goes back to the 1950s when the six founding member states agreed to equip the European Communities with a Court of Justice of the EU (CJEU) in the  treaties signed in Paris and Rome, drawing on “judicial discretion”—that is, the authority of judges to interpret and apply legal rules to resolve disputes (Stone Sweet, 2004, p. 23). The court has played a key role in shaping the integration process through law (Vauchez, 2013), and has become one of the most “effective supranational judicial bod(ies)” in the world, competing, in terms of power, with “the most powerful constitutional courts everywhere” (Stone Sweet, 2004, p.  1). Gradually, European judges, “in complicity with national judges and private litigants, created a legal system based on the commitment of making the EU legislation effective in national legal orders” (Stone Sweet, 2004, p.  19) in a community based on the rule of law (Saurugger & Terpan, 2017), as the court affirmed in Les Verts and on many occasions since. Within this process, the principle of independence has become an institutional marker or a key characteristic of the institutional identity of the Court of Justice, the European Commission, and the European Central Bank (Vauchez, 2020, p.  6). A policy of independence/politique de l’indépendance has gradually emerged as a new governmental technique (François & Vauchez, 2020), complemented by what I call a “rule of law policy” which emerged in the aftermath of the collapse of communism and the Eastern enlargement as examined later in the chapter. On the other hand, after 1945, nation states in Western Europe established constitutional courts to rule whether laws conflict with constitutional rights, rules, and freedoms (Stone Sweet, 2004). In addition, to preserve the independence of the judiciary, judicial councils have been established to fulfil a wide range of functions, but above all to insulate—at least to some extent—judicial appointments, promotion, and discipline of judges from partisan politics. At least in theory, judicial councils have been designed to maintain an appropriate balance between judicial independence and accountability (Garoupa & Ginsburg, 2009), and their number increased in Europe post-1945. France established its Conseil supérieur de la magistrature in 1946 (Vauchez, 2004). Italy followed, enshrining the principle of independence in the 1948 Constitution, and in 1958 established its Consiglio Superiore della Magistratura (Vauchez, 2004) which has become a model (Guarnieri, 2004), emulated to some extent, in the 1970s, by Spain, Portugal, and Greece in the context of their transitions

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to democracy. Since then, the relationship between elected and non-­ elected institutions has gradually transformed, in some contexts increasing the potential for domestic institutional conflict (Pizzorno, 1998). At the same time, the centrality of judicial institutions in political regimes has revived the old and ever open lively debates about how much independence to confer to judges vis-à-vis political institutions. The question of how to maintain a balance between independence and accountability—the two “different sides of the same coin” (Lasser, 2020)—remained a complex normative and institutional issue on domestic agendas in the 1990s, yet then it was rarely debated at the EU level. In the 1990s, the role of judges gained visibility in the public sphere amid corruption scandals (Roussel, 1998) involving politicians, judges, bureaucrats, and businessmen (Guarnieri & Pederzoli, 1996) when widespread corruption in the political and administrative system of Italy came to the surface in the context of distrust in political parties and representative institutions (Vannucci, 2009). As Della Porta put it, judges “emerged in the eyes of the public as the ‘heroes’ of a peaceful revolution against the ‘villainous’ politicians” (Della Porta, 2001). The role of the judiciary in putting an end to corruption was acclaimed (Guarnieri, 2003, p. 9), leading not only to “unusual degrees of independence” (Della Porta, 2001) but also to the transformation of the Italian political regime. The initial enthusiasm regarding the role of judges to set right the wrongs waned over time (Guarnieri, 2003, p. 9) and the relationship between justice and politics has remained on the political agenda ever since. While the Italian debate was linked to the issue of corruption (Vannucci, 2009), in other contexts, discussion focused on the actual relation of justice to politics as well as the question of judges’ effectiveness. The functioning of the judiciary was an issue in a number of countries including France and Belgium (Vigour, 2007, p.  48). Although the debates were framed differently depending on the domestic contexts in Western democracies, the 1990s gave rise to “public policies for justice” (Vigour, 2007, p. 48; Coman & Dallara, 2010). In other words, against this backdrop, judicial systems became the recipient of public policies designed to reform them, with an eye to modernisation and making them more efficient, as with any other administration (Vigour, 2007, p. 48). Such reforms have covered governance policies, structural policies, procedural policies, and managerial policies (Fabri, 2006).

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Moving from the West to the East, after the collapse of communism, Central and Eastern European countries adopted new constitutions (Blokker, 2014) and introduced an increasing number of reforms, including changes to the organisation and independence of the judiciary. As Krygier put it, “post-communist reformers have almost universally, and at least rhetorically, been committed to implementing the rule of law, a Rechtsstaat”, a “law-governed state” (Krygier, 2005, p. 266). The complex post-1989 process of political, economic, legal, and social transformation was meant to fulfil the delayed modernisation of the former popular democracies and, by the same token, to pave their way “to Europe”, understood as the reunification of the East with the West. The question of an independent judiciary was an old concern and an aspiration in the region, debated in the context of the modern state formation but interrupted by wars, authoritarian and totalitarian regimes (Coman, 2009). The communist regimes did not fulfil that promise. When communist regimes collapsed, the judiciary came to be viewed as an institution subordinated to the political will, and deeply politicised. Considering the abuse of the term “legality” during communist times, it was “hardly surprising” that the rule of law was one of the most important demands after 1989 (Priban, 1999, p. 45). Against this backdrop, in the 1990s, Central and Eastern European countries sought “to emulate, with varying degrees of success, the models of liberal-democratic principles in their own institutional design and practice” (Sadurski, 2006, p. 28). Yet creating new democratic and independent institutions was an “unprecedented and daunting” task (Magalhães, 1999, p. 45). Constitutional courts were established, some of them weak, like those in Romania or Estonia (Czarnota et al., 2005, p. 3), while others were powerful and sometimes accused of overstepping their roles, like the Hungarian and the Polish courts, while the Bulgarian court was in between, sometimes weak, sometimes able to play its role in a troubled democratic transition (Blokker, 2014). The Hungarian Court was set up as an example, referred to as the “the most powerful court of its kind in the world” (Scheppele, 1999, p.  81), and enjoyed the highest levels of public trust in the 1990s (Boulanger, 2006, p. 277). In building democratic political regimes, judicial institutions were often the subject of high-­ level political conflicts (Blokker, 2014, p. 75), and would be called on to solve a wide range of societal problems ranging from transitional justice (Teitel, 2000) to the corruption which was flourishing amid the process of the transition to market economy and widespread privatisation (Coman,

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2009). In such times of political upheaval, the rule of law was meant to mediate the normative shift in values from one political regime to another (Teitel, 2000, p. 11). In the 1990s, the issue came to stand as “the white myth of the transition” pitted against the “black myth”: that is, against corruption and the legacies of the past (Krastev, 2005, p. 274). The former communist countries also established judicial councils in the 1990s, some even before the beginning of their accession negotiations with the EU.  In 1997, Hungary witnessed the most radical change in terms of judicial independence (Bobek & Kosar, 2019), ensuring full empowerment of its National Judicial Council (NJC). In Poland, the competences of the NJC were extended in 1997, 2001, and 2003, but without reducing the roles of the Ministry of Justice in judicial politics (Coman, 2014). Czechia remained the “black sheep” here (Bobek & Kosar, 2019) because of its resistance to the tendency to create this kind of institution. Paradoxically, the two countries which apparently had the most independent judiciaries in the region in the 2000s were Bulgaria and Romania. Indeed, in 2004, judges qualified the outcomes of the reform in Romania as being the “paradise of the independence of the judiciary” (Coman, 2009).

2.5   Principled Consensus: Global Commitment and the Rise of a Paradigm The rule of law has also become a key principle of global governance, mentioned in declarations, treaties, and agreements. The preamble of the Universal Declaration of Human Rights (1948) stipulates that “human rights should be protected by the rule of law”, and the Statute of the Council of Europe (1949) emphasises the pre-eminence of the law together with human rights and fundamental freedoms that any person should enjoy. The rule of law has been also mentioned as a principle of governance by the United Nations (Report of the Secretary General, 2004) as well as by the Organisation of American States and several regional organisations such as the ASEAN and the African Union. Likewise, the preamble of the 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR) reads: Being resolved, as the governments of European countries which are like-­ minded and have a common heritage of political traditions, ideals, freedom

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and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.

Since the 1950s, the rule of law has gradually become a vector of democratisation in different parts of the world, promoted not only by states and non-state actors but also by international organisations, transnational networks, think tanks and epistemic communities, and expert groups. The rule of law has become an influential tool of foreign policy, meant to support economic development and the proper functioning of democracy through legal certainty, legality, and equality before the law (i.e. formal legality). As we will see below, this diverse group of actors has helped translate this principle into concrete measures for implementation, giving rise to a wide range of policy prescriptions and indicators that can measure and supervise implementation, all with the aim of strengthening the rule of law in countries in transition. Shedding light on the rule of law was no longer the sole remit of constitutional courts and pure academic debates. This global process has contributed to the evolution of a rule of law paradigm (Magen et al., 2009) or what I call a rule of law regime. By supporting democratic reforms in different parts of the world, regional and international organisations have devoted particular attention to judicial institutions and, more specifically, to judicial independence. Not only the United States Agency for International Development (USAID) and the American Bar Association (ABA) but also the World Bank (WB) and the International Monetary Fund (IMF) have placed particular importance on the process of appointing judges to the courts, the careers of judges and prosecutors, and the administration of the judiciary. All three institutions postulated that that the rule of law is a sine qua non element for democracy and the proper functioning of markets, which both need certainty and predictability to maintain “social peace” and to allow economic actors to better predict the costs and benefits of their transactions (Tamanaha, 2009, p. 10). In so doing, they have fuelled a process of global change through law. The courts’ role here was twofold: to offer a stable investment climate for businesses, and to secure basic conditions for markets to operate (Dezalay & Garth, 2011). The global diffusion of this understanding of the rule of law resulted in a multiplication of programmes for judicial institutions which became key actors in the implementation of the “rule of law ideal”. The collapse of communism in Central and Eastern Europe has given a new impetus to the promotion of the rule of law globally as a key

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prerequisite for the establishment of stable and well-functioning market economies and democratic institutions, becoming the lingua franca of a wide range of actors (Carothers, 2002). This old principle has been integrated into what is called the Washington consensus. This was an agreement at the beginning of the 1990s between the IMF, the WB, and U.S. Department of the Treasury which brought together a set of policy recommendations, emphasising the idea of the free market and the reduction of state involvement. The IMF, the World Bank, and many other financial organisations placed the rule of law at the centre of their policy instruments as a form of conditionality to encourage change and promote reforms in different parts of the world. In Europe, the Council of Europe (CoE) was established in May 1949 with the aim of achieving greater unity among its members through common action, agreements, and debates, to promote democracy and the rule of law and the respect of human rights. The rule of law is mentioned in the Preamble of the Statute of the CoE as one of “the principles which form the basis of all genuine democracy” together with individual freedom and political liberty. It is a precondition for joining the CoE (Article 3). The Preamble to the Statute of the Council of Europe underlines the “devotion” of member states to the “spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy”, while the Preamble to the European Convention on Human Rights states that “the governments of European countries […] are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law”. From the beginning of the 1990s, the Council of Europe and its bodies actively engaged in a continuous normative exercise to promote democracy, setting norms, standards, and recommendations in order to strengthen the rule of law (Piana, 2010). As advisory body of the CoE on constitutional matters, the Venice Commission was created temporarily in the beginning of the 1990s to provide legal advice to its member states and, in particular, to help states wishing to bring their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights, and the rule of law. The Commission was meant to function for just a few months, as Jean-Claude Scholsem has stated (Belgian member of the Venice Commission), but the 1990s revealed the need for advice on constitutional matters and the

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Commission has become permanent (Conference, 12 November 2019 at the IEE-ULB). From the 2010s onwards, the Venice Commission has devoted particular attention to the “practical” dimensions of the rule of law. In 2011, the Venice Commission elaborated the Report on the Rule of Law (CDL-­ AD(2011)003rev) which emphasised the main features of this principle. The report—written with the contribution of Sergio Bartole (Italy), Veronika Bilkova (Czechia), Sarah Cleveland (the United States of America), Paul Craig (the UK), Jan Helgesen (Norway), Wolfgang Hoffmann-Riem (Germany), Kaarlo Tuori (Finland), Peter van Dijk (the Netherlands), and Sir Jeffrey Jowell (the UK), known for their academic writings on the rule of law and its importance for democracy—contains a checklist to evaluate the state of the rule of law and its implementation in practice. It discusses the relationship between the rule of law, democracy, and human rights and puts forward a set of benchmarks, showing that the rule of law is not only a multi-layered concept but also that its implementation covers a wide range of dimensions. The Venice Commission underlined not only the link between the rule of law, democracy, and human rights but also the “risks of a purely formalistic approach” which would merely require “that any action of a public official be authorized by law” (2016, CDL-AD(2016)007: 7). The Venice Commission has examined various understandings of the rule of law from different legal cultures (2016, CDL-AD(2016)007: 6). It has acknowledged the variety of meanings of the rule of law and identified a set of core elements—legality, legal certainty, prevention of abuses, and misuse of power, equality before the law and non-discrimination and non-­ discrimination—as summarised in the figure below (Table  2.1). The Venice Commission’s checklist is meant to enable an objective and comprehensive assessment of the rule of law for the actors who may decide to carry out such assessments (2016, CDL-AD(2016)007: 8). In the words of the Venice Commission, the existence of such a checklist does not imply a uniform implementation of the rule of law principles regardless of its political, legal, social, and historical conditions (2016, CDL-AD(2016)007: 9). Not all these benchmarks have to be cumulatively fulfilled in order for the ultimate assessment on compliance with the Rule of Law to be positive, as this list is “neither exhaustive nor final” (2016, CDL-AD(2016)007: 9). Yet, the Venice Commission embraced “the classic public law understanding—the rule of law first and foremost as a power-limiting principle” (Smith, 2019, p.  563), referring to both formal and substantive

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Table 2.1  The core dimensions of the rule of law—checklist established by the Venice Commission Core rule of law dimensions

Benchmarks

Legality

Supremacy of the law Compliance with the law Relationship between international law and domestic law Law-making powers of the executive Law-making procedures Exceptions in emergency situations Duty to implement the law Private actors in charge of public tasks Accessibility of legislation Accessibility of court decisions Foreseeability of the laws Stability and consistency of law Legitimate expectations Non-retroactivity Nullum crimen sine lege and nulla poena sine lege principles Res judicata Non-discrimination Equality in law Equality before the law

Legal certainty

Equality before the law and non-discrimination

Prevention of abuses and misuse of power Access to justice Independence and impartiality Independence of the judiciary Independence of individual judges Impartiality Prosecution: autonomy and control Fair trial Access to courts Presumption of innocence Effectiveness of judicial decisions Constitutional justice Source: Adapted from the Check List of the Venice Commission (CDL-AD(2016)007, 2016)

understandings of the term. Its checklist draws on the main rule of law dimensions as discussed in the literature, which illustrate the intimate relationship between academic and legal co-construction of norms and principles.

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The translation of the rule of law into concrete benchmarks has served several purposes: one was giving meaning to the reforms to be implemented; the other was related to international and regional organisations’ need to assess progress at the domestic level.

2.6   An Analytical Grid: Consensus, Dissensus, and Contestation Over the Rule of Law Despite the incorporation of the rule of law in the core missions of international and regional organisations, the widespread global support and consensus surrounding the rule of law has not helped to clarify its meaning (Pech, 2012). On the contrary, its meaning seems less clear than ever (Fallon, 1997). Scholars have even argued that it is the very ambiguity as to the concrete meaning of the rule of law that allowed the global consensus on this issue (Fitschen, 2008, p. 354). Dissensus over values, norms, and principles is not unusual. Law itself is a field of arguments and dispute (Maccormick, 1999). Some norms and principles are clear and succinct, while others are multifaced and open to interpretation (Winston, 2018, p. 639). States, institutions, and citizens have different reactions to different norms and principles, “sometimes viewing them as malleable, and other times as fixed” (Winston,  2018, p. 639). As Dworkin argued (1998), there is no uncontroversial way to determine what individual rights, for instance, entail. Equality and liberty, to mention two of the main ideals at the core of the rule of law debate, are also “contestable in meaning and reach” (Tamanaha, 2004, p. 104). The rule of law, in the same vein as many other important concepts such as democracy, justice, and liberty or human rights (Lacroix & Pranchère, 2019), is a contested notion (Krygier, 2014, p. 46). These differences of views do not render the concept meaningless or useless. On the contrary, they help to shed light on its contours (Krygier, 2009, p. 46). In theory, the rule of law has never been a consensual concept. But in practice, being acclaimed by many regional and international organisations and incorporated in many charters, conventions, treaties, and constitutions it has created the illusion of a global consensus. Yet recent years have seen increased contestation, going beyond specific concerns, with some voices pleading for its pure rejection, as a form of dissensus. As Palombella and Walker posit, “perhaps the conditions of intellectual consensus and of social and political balance that made the rule of law a

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plausible and justifiable mission for law-in-general simply no longer hold” (2009, p. xii). The question remains: which dimensions of the rule of law concept (legality, control, consent, and substance) fuel disagreements over the rule of law, and what are their normative foundations? The critique of the rule of law is very diverse: beyond consensus, some authors question its very raison d’être; others contest the ways in which it is promoted or implemented, and deplore the primacy of the rule of law concerns over other societal issues. When seeking to understand which rule of law dimension gives rise to increased consensus/dissensus, three main attitudes can be identified: principled consensus, at one end of the continuum; and outright dissensus at the other (see Table 2.2). In between, I expect to observe a practice-­ based contestation which is rooted in the critique of the implementation of the rule of law rather than purely rejecting it. In other words, while principled support is a reflection of consensus, I consider that outright dissensus consists of the rejection of liberal constitutionalism and the hegemony of liberal democracy (Ginsburg et  al., 2018). Within the debate in the EU polity I would expect to observe a wide variety of grey, Table 2.2  Analytical grid: principled consensus, outright dissensus, and experience-­based contestation over the rule of law Rule of law dimensions Legality

Control

Consensus ++

Contestation +/−

Principled support States and polities beyond the states are shaped through law National and/or supranational

Experience-based contestation Outright dissensus Too much focus on law seen Law is an as an end in itself instrument of domination Excessive empowerment of State control judges The empowerment of judges/ judicialisation of politics did not strengthen the rule of law on the ground The empowerment of Sovereignty of the non-elected actors to the people detriment of elected representatives Formal and substantive Substantive goals dimensions of the rule of law are not compatible are compatible, yet the former with the rule of law prevail over the latter

Consent

Courts and/or parliaments

Substance

Fundamental rights and democracy

Dissensus −−

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targeting not the ideal of the rule of law but rather its implementation, as a reflection of controversy and contestation, and a normal feature of politics. As a reminder, this analytical grid is meant to guide and inform the content of the next chapters, seeking to see how EU and national actors reconfigure the rule of law—in terms of meanings, aims, and implementation. Dissensus Dissensus over the rule of law has very diverse origins, which would deserve a specific and systematic analysis. While liberal scholars see the rule of law as a pillar of liberal democracy, its critics point to the risks of giving pre-eminence to non-elected parties over the will of the people. Two visions of democracy are therefore opposed: one based on the rule of law and liberal constitutionalism (Allan, 2003); the other drawing on ideals of popular sovereignty and equality (Mouffe, 2016). One legitimises the empowerment of judges, seen as “a constitutional barrier between governmental power and popular sovereignty” (Hutchinson, 1999, p. 200), the second stands for the power of the people through the voice of the parliaments, the courts, and the executive (Mouffe, 2016). When dissensus is expressed, it often refers to the rule of law as a tool used by international actors leading to the weakening of the state. Some scholars have pointed out that the rule of law can be used as principle which legitimises certain ideologies. The promotion of the rule of law as a keystone of the civilisation process has been strongly criticised (Mattei & Nader, 2008). This has been deplored as a vector of empowerment of some actors to the detriment of others, allowing the balance of power to shift from elected institutions to non-elected ones, such as courts or banks. Authors like Mattei and Nader criticise “the transformation of the rule of law ideal into an imperial ideology” that has “accompanied the move from a need of social justice and solidarity towards the capitalist requirements of efficiency and competition” (2008, p. 3). From their perspective, the promotion of the rule of law is seen as a vehicle not of legality, but of “plunder” and therefore an intrusion into states’ sovereignty in the pursuit of new markets. What is deplored is the erosion of state sovereignty and the diffusion of a discourse which favours human rights over state rights (Magen et al., 2009, p. 6). Against this backdrop, critics also condemn the fact that states are no longer the source of power, control, or consent when it comes to determining the raison d’être of the rule of law. This displacement of power might have consequences for its substance. While international and

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regional organisations define prescriptions of political organisation, championing a limited power, economic actors also play a role in defining norms and standards for social, economic, and even environmental policy, exercising quasi-sovereign powers of law-making, to quote Scheuerman (1999, p. 257). When it comes to the substance of the rule of law, critics have drawn on Marxist critiques of the law as an instrument of domination; and also, paradoxically, on Hayek’s seminal book The Road to Serfdom which argues in favour of limited government. In this vein, it has been contended that the rule of law is not compatible with social justice, welfare states, or state intervention in economy (although there is no empirical evidence to sustain such a claim). Experienced-Based Contestation Contestation over the rule of law does not imply complete rejection of this principle. The concept grows in relation with the outcomes on the ground. Contestation often targets the global process of democratisation through law, and the translation of this ideal into concrete measures, which has been limited to legal and judicial reforms (Krygier, 2009, p. 51), not the principle per se. From this perspective, it has been argued that the efforts to establish independent courts have in some cases failed “to address the popular aspiration for law to improve lives in concrete ways” (Goldston, 2014, p.  11). Although many regional and international organisations have put forward a correlation between independent courts and the protection of rights, there is no evidence that judicial independence leads to a better upholding of constitutional commitments (Chilton & Versteeg, 2018, p. 297). Despite the wide support for the rule of law and the widespread circulation of models and templates for reforms, outcomes on the ground have remained elusive, particularly in countries which have witnessed transitions from totalitarian/authoritarian to democratic regimes. And this might give rise to contestation. To support this critical approach to the promotion of the rule of law, several scholars used insights and empirical evidence from Latin America, Central and Eastern Europe, the Balkans, Africa, and more recently from South East Asia and the post-Soviet region (Carothers, 2002) to demonstrate that some countries have taken paths that have not (yet) led to the consolidation of the rule of law. Scholars have criticised international organisations for developing a “one-size-fits-all approach”, that is, a blueprint design focusing on the importance of independence, accountability,

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efficiency, and professionalism of the judiciary in countries in transition to democracy, regardless of their traditions and specificities (Armytage, 2012). They echo in this regard the debate opposing the Enlightenment utopia in relation to the universality of reasons, and romanticism emphasising the particularity of cultures (Tamanaha, 2004, p. 37). This blueprint travelled from Latin America to the Balkans (Elbasani, 2013) to Central and Eastern Europe (Dallara, 2014), and the post-Soviet space without any major revision (Hill, 2010, p. 98). As emphasised by Uitz, “although the language of the rule of law is part of everyday political and even legal discourse in Central Europe, it is little more than a rhetorical ornament” (Uitz, 2009), used to create “the façade of a democratic regime in the making”, in the words of Carothers (Carothers, 2002). Against this backdrop, ever more scholars point out the need to revisit the prevailing strategies at the international level for promoting the rule of law and to identify new ways forward (Marshall, 2014). As far as the substance of the concept is concerned, practitioners and scholars alike have contended that in the context of the Washington consensus and the promotion of neoliberal reforms, by endorsing market economy and democracy international actors embraced formal understandings of the rule of law rather than its substantive aspects. International organisations, as Armytage argued, developed “an orthodoxy which has predominately focused on promoting “thin” or procedural notions of reforms—as distinct from the substantive or “thick” aspects” (2012, p. 6). In terms of consent and control, as Slaughter put it, “global rule of law norms are increasingly being constructed through transgovernmental legal relations, primarily among courts and administrative agencies” (Slaughter, 2005, p.  18). These networks lead to the establishment of what Helfer and Slaughter have called “rule of law communities”, through the diffusion of “judicial meta norms such as judicial independence, regulatory transparency and public participation” (1997). Experts and networks share best practices, indicators, goals, and definitions and agree upon standards, guidelines, benchmarks, indexes, and indicators to consolidate the rule of law and to establish appropriate instruments of public policy. This way of spreading the rule of law generates conflicts as it allows transnational actors to circumvent dissenting legislatures and to contribute to the empowerment of non-state actors, giving rise to serious problems of transparency and accountability (Golub, 2003). Although rule of law expert bodies and networks draw their legitimacy from the legal knowledge and expertise in constitutional matters and justice reforms,

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that role is often contested by political actors who invoke their own democratic legitimacy in opposition to the empowerment of non-elected bodies. From this perspective, what is in conflict is the source of consent and the legitimacy of the actors that give meaning to the rule of law. Steering a path away from arguments against or in favour, some authors argue in favour of a middle ground that attempts to “recraft” (Dyzenhaus, 1999) the rule of law, contending that just because “rule of law has been used for reactionary purposes” this does not mean that “it could not be used for more progressive ones” (Hutchinson, 1999 , p. 197). Under no circumstances, however, should the rule of law be an end in itself. Law is more than a set of rules (Dworkin, 1998). Behind laws there are goals to be reached and values/ideals to achieve. Law is precisely about values (Hutchinson, 1999, p. 199) and it is at the core of politics. Against this backdrop, Scheuerman has argued that the rule of law should not “hinder the quest for a generous welfare state”, and that “greater social and economic equality and more formal legality can and should go hand-in-hand” (1999, p. 245), pleading for a social democratic defence of this principle. The risks of seeing the rule of law losing its credibility must therefore be taken seriously (Beatty, 2009, p. 99).

2.7   Conclusion This chapter outlined an analytical grid to shed light on the consensus/ dissensus over the rule of law. To do so, it first retraced the intellectual origins of the concept, from its first references in the writings of the Antiquity Greek and Roman philosophers to the Middle Ages and in the context of state formation in Western Europe. This first section also shows that this concept has been historically disputed in the contexts from which it emerged. Beyond intellectual debates, Sect. 2.2 examined how the rule of law has been enshrined in the constitutions of EU member states to show again that the ways in which this principle is mentioned varies depending on the context. Section 2.2 also pointed out that when the rule of law is mentioned like democracy and rights, it is not accompanied by specific definitions. Some of its main principles—legality, certainty, and the right to be heard—have been enshrined in constitutions and established by national courts. Section 2.3 showed how the rule of law has become a principle of global governance, a vector of democratisation, and a sine qua non condition for the formation of market economies. Established as a tool of foreign policies in the 1950s, it was encapsulated in the so-called

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rule of law consensus (perhaps only apparent) in the 1990s giving rise not only to a new paradigm, but also to a series of concrete benchmarks, dimensions, and indicators for concrete implementation, mainly elaborated by a variety of non-state actors as well as regional and international organisations. Yet, despite this, the commitment to the rule of law is fading. Drawing on the previous sections, to conclude, Sect. 2.4 established an analytical grid which brings together three main attitudes vis-à-vis the rule of law: principled consensus, outright dissensus, and experience-­based contestation. This grid will guide the empirical analysis in some of the next chapters to explain how institutional actors shape the EU’s rule of law policy. In other words, is the rule of law understood in its formal or substantive sense? Which dimension—legality, consent, control, and substance—triggers consensus, dissensus, or pure contestation?

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Jowell, J. (2011). The Rule of Law and Its Underlying Values. In J.  Jowell & O.  Dawn (Eds.), The Changing Constitution (pp.  11–35). Oxford University Press. Kaluszynski, M. (2007). La fonction politique de la justice: regards historiques. Du souci d’historicité à la pertinence de l’historicisation. In I. J. Commaille & M. Kaluszynski (Eds.), La fonction politique de la justice (pp. 9–27). Editions La Découverte. Klerman, D., & Mahoney, P. (2005). The Value of Judicial Independence: Evidence from 18th Century England. American Law and Economics Review, 7, 1–27. Krastev, I. (2005). Corruption, Anti-Corruption Sentiments, and the Rule of Law. In A. Czarnota, M. Krygier, & W. Sadurski (Eds.), Rethinking the Rule of Law after Communism (pp. 323–341). Central European University Press. Krunke, H., & Baumbach, T. (2019). The Role of the Danish Constitution in European and Transnational Governance. In I. A. Albi & S. Bardutzky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. National Reports (pp. 269–313). Springer Open. Krygier, M. (2005). Rethinking the Rule of Law After Communism. In A.  Czarnota, M.  Krygier, & W.  Sadurski (Eds.), Rethinking the Rule of Law after Communism (pp. 265–279). Central European University Press. Krygier, M. (2009). The Rule of Law: Legality, Teleology, Sociology. In G. Palombella & N. Walker (Eds.), Relocating the Rule of Law (pp. 45–71). Hart Publishing. Krygier, M. (2014). Rule of Law (and Rechtsstaat). In J. R. Silkenat, J. E. Hickey, & P. D. Barenboim (Eds.), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (pp. 45–61). Springer. Lachmayer, K. (2019). The Constitution of Austria in International Constitutional Networks: Pluralism, Dialogues and Diversity. In A. Albi & S. Bardutsky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. National Reports (pp. 1271–1322). Springer Open. Lacroix, J., & Pranchère, J.-Y. (2019). Les Droiits de l’homme rendent-ils idiot? Seuil. Lasser, M. d.-O.-l. (2020). Judicial Dis-Appointments Judicial Appointments Reform and the Rise of European Judicial Independence. Cambridge University Press. Loughlin, M. (2003). Ten Tenets of Sovereignty. In B. Walker (Ed.), Sovereignty in Transition (pp. 55–86). Hart Publishing. Maccormick, N. (1999). Rethoric and the Rule of law. In D. Dyzenhaus (Ed.), Recrafting the Rule of Law. The Limits of Legal Order (pp.  163–177). Hart Publishing. Magalhães, P.  C. (1999). The Politics of Judicial Reform in Eastern Europe. Comparative Politics, 32(1), 43–62.

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Magen, A., Risse, T., & McFaul, M. A. (2009). Promoting Democracy and the Rule of Law. American and European Strategies. Palgrave Macmillan. Magnette, P. (2000). L’Europe, l’Etat et la démocratie. Editions Complexe. Marshall, D. (2014). The International Rule of Law Movement. A Crisis of Legitimacy and the Way Forward. Harvard Law School: Human Rights Program Series. Martinico, G., Guastaferro, B., & Pollicino, O. (2019). The Constitution of Italy: Axiological Continuity Between the Domestic and International Levels of Governance? In A.  Albi & S.  Bardutzky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (pp. 493–541). Springer Open. Mattei, U., & Nader, L. (2008). Plunder. Whan the Rule of Law Is Illegal. Blackwell Publishing Ltd. Moller, J., & Skaaning, S.-E. (2014). The Rule of law. Definitions, Measures, Patterns and Causes. Palgrave Macmillan. Mouffe, C. (2016). Le Paradoxe démocratique. Beaux-Arts de Paris éditions. Mullor, J. S., Torres Pérez, A. (2019). The Constitution of Spain: The Challenges for the Constitutional Order Under European and Global Governance. In I.  A. Albi & S.  Bardutzky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. National Reports (pp. 543–590). Springer Open. Nedzel, N. E. (2014). Rule of Law v. Legal State: Where Have We Come from, Where Are We Going To? In I. J. R. Silkenat, J. E. Hickey Jr., & P. D. Barenboim (Eds.), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (pp. 289–315). Springer. Nergelius, J. (2019). The Constitution of Sweden and European Influences: The Changing Balance Between Democratic and Judicial Power. In I.  A. Albi & S. Bardutzky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. National Reports (pp.  315–358). Springer Open. Nicolaidis, K., & Kleinfeld, R. (2012). Rethinking Europe’s “Rule of Law” and Enlargement Agenda: The Fundamental Dilemma. Jean Monnet Working Paper 08/12. Ojanen, T., & Salminen, J. (2019). Finland: European Integration and International Human Rights Treaties as Sources of Domestic Constitutional Change and Dynamism. In A.  Albi & S.  Bardutzky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. National Reports (pp. 359–404). Springer Open. Palombella, G. (2014). The Measure of Law: The Non-instrumental Legal Side from the State to the Global Setting (and from Hamdan to Al Jedda). In I. J. R. Silkenat, J. E. Hickey Jr., & P. D. Barenboim (Eds.), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (pp. 129–145). Springer.

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Palombella, G., & Walker, N. (2009). Introduction. In G. Palombella & N. Walker (Eds.), Relocating the Rule of Law (pp. i–xi). Hart Publishing. Pech, L. (2012). Rule of Law as a Guiding Principle of the European Union’s External Action. CLEER Working Papers, 3. Pereira Coutinho, F., & Piçarra, N. (2019). Portugal: The Impact of European Integration and the Economic Crisis on the Identity of the Constitution. In A. Albi & S. Bardutsky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (pp. 591–639). Springer Open. Piana, D. (2010). Judicial Accountabilities in New Europe: From Rule of Law to Quality of Justice. London and New York: Routledge. Pizzorno, A. (1998). Il potere dei giudici. Stato democratico e controllo della virtù. Editori Laterza. Popelier, P., & Van de Heyning, C. (2019). The Belgian Constitution: The Efficacy Approach to European and Global Governance. In A.  Albi & S.  Bardutzky (Eds.), National Constitutions in European and Global Governance: … (pp. 1225–1270). Springer Open. Priban, J. (1999). Legitimacy and Legality after the Velvet Revolution. In I.  J. Priban & J.  Young (Eds.), The Rule of Law in Central Europe. The Reconstruction of Legality, Constitutionalism and Civil Society in the Post-­ Communist Countries (pp. 29–56). Routledge. Roussel, V. (1998). Les magistrats dans les scandales politiques. Revue française de science politique, 48(2), 245–273. Sadurski, W. (2006). EU Enlargement and Democracy in New Member States. In I. W. Sadurski, A. Czarnota, & M. Krygier (Eds.), Spreading Democracy and the Rule of Law? The Impact of EU enlargement on the Rule of Law, Democracy and Constitutionalism in Post-Communist Legal Orders (pp. 27–49). Springer. Saurugger, S., & Terpan, F. (2017). The Court of Justice of the European Union and the Politics of Law. Palgrave. Scheppele, K.  L. (1999). The New Hungarian Constitutional Court. East European Constitutional Review, 8(4), 81. Scheuerman, W. E. (1999). Globalization and the Fate of Law. In D. Dyzenhaus (Ed.), Recrafting the Rule of Law. The Limits of Legal Order (pp.  243–266). Hart Publishing. Sellers, M. N. (2014). What Is the Rule of Law and Why Is It So Important? In I. J. R. Silkenat, J. E. Hickey Jr., & P. D. Barenboim (Eds.), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (pp. 3–15). Springer. Slaughter, A.-M. (2005). Breaking Out: The Proliferation of Actors in the International System. In I. Y. Dezaley & B. G. Garth (Eds.), Global Prescriptions. The Production, Exportation, and Importation of a New Legal Orthodoxy (pp. 12–36). The University of Michigan Press. Smith, M. (2019). Staring into the Abyss: A Crisis of the Rule of Law in the EU. Eur Law J., 25, 561–576.

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Stone Sweet, A. (2004). Governing with Judges: Constitutional Politics in Europe. Oxford University Press. Tamanaha, B. Z. (2004). On the Rule of Law. History, Politics, Theory. Cambridge University Press. Tamanaha, B. Z. (2009). A Concise Guide to the Rule of Law. In G. Palombella & N. Walker (Eds.), Relocating the Rule of Law (pp. 3–17). Hart Publishing. Tanchev, E., & Belov, M. (2019). The Bulgarian Constitutional Order, Supranational Constitutionalism and European Governance. In I.  A. Albi & S. Bardutzky (Eds.), National Constitutions in European and Global Governance. Democracy, Rights, the Rule of Law. National Reports (pp.  1097–1138). Springer Open. Teitel, R. G. (2000). Transitional Justice. Oxford University Press. Uitz, R. (2009). The Rule of Law in Post-Communist Constitutional Jurisprudence. In G. Palombella & N. Walker (Eds.), Relocating the Rule of Law (pp. 71–99). Hart Publishing. Vannucci, A. (2009). The Controversial Legacy of ‘Mani Pulite’: A Critical Analysis of Italian Corruption and Anti-Corruption Policies. Bulletin of Italian Politics, 1(2), 233–264. Vauchez, A. (2004). L’institution judiciaire remotivée. Le processus d’institutionnalisation d’une nouvelle justice en Italie, 1960–2000. LGDJ. Vauchez, A. (2013). L’Union par le droit. L’invention d’un programme institutionnel pour l’Europe. Presses de Sciences Po. Vauchez, A. (2020). We, the Independents. Europe’s Independent Branch and the Rising Conflicts of Sovereignty. Conference Conflicts of Sovereignty in the European Union, Brussels. Vigour, C. (2007). Les recompositions de l’institution judiciaire. In J. Commaille & M.  Kaluszynski (Eds.), La fonction politique de la justice (pp.  47–69). La Découverte. Vikarska, Z., & Bobek, M. (2019). Slovakia: Between Euro-Optimism and Euro-­ Concerns. In A. Albi & S. Bardutzky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law. National Reports (pp. 835–886). Springer Open. Weiler, J. H. (2021). Not on Bread Alone Doth Man Liveth (Deut. 8:3; Mat 4:4): Some Iconoclastic Views on Populism, Democracy, the Rule of Law and the Polish Circumstance. In A. von Bogdandy et al. (Eds.), Defending Checks and Balances in EU Member States. Taking Stock of Europe’s Actions (pp. 3–15). Springer. Winston, C. (2018). Norm Structure, Diffusion, and Evolution: A Conceptual Approach. European Journal of International Relations, 24(3), 638–661.

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Wroblewska, I. (2021). The Rule of Law. The Polish Perspective. In T. Drinoczi & A.  Bien-Kacala (Eds.), Rule of Law, Common Values, and Illiberal Constitutionalism. Poland and Hungary within the European Union (pp. 133–151). Routledge. Xuereb, P. G. (2019). The Constitution of Malta: Reflections on New Mechanisms for Synchrony of Values in Different Levels of Governance. In A.  Albi & S. Bardutzky (Eds.), National Constitutions in European and Global Governance: Democracy, Rights, and the Rule of Law. National Reports (pp.  141–178). Springer Open. Zolo, D. (2007). The Rule of Law: A Critical Reappraisal. In I. P. Costa & D. Zolo (Eds.), The Rule of Law: History, Theory and Criticism (pp. 3–7). Springer.

CHAPTER 3

From the Constitutionalisation of Values to the Question of Enforcement

3.1   Introduction The EU does not have a constitution, yet the European project has experienced a remarkable process of constitutionalisation. The constitutionalisation of the Treaty of Rome already emerged from a set of legal arrangements “binding upon sovereignty states into a vertically integrated regime conferring judicially enforceable rights and obligations on legal persons and entities, public and private”, within the territory of the Union (Stone Sweet, 2004, p. 65). This process corresponds to the transformation of the community legal order from a traditional international organisation into “a federal-type structure” (Weiler, 1991), based on a set of treaties which are a constitution in all but name (Kelemen, 2006, p. 1302; Rittberger & Schimmelfennig, 2006, p.  1148). The process by which supranational Europe acquired an identity as a distinct political community has been highly uneven and complex. For constitutionalisation was meant to strengthen the legitimacy of the EU, yet the process was unique in the sense that it was not supported by a European demos, but mainly driven by “laws, institutions, political projects and administrative processes rather than strong community of attachment or sympathy” (Walker, 2012, p.  80). The constitutionalisation of values in the EU polity has been a gradual elite-driven process, and was not always consensual (Foret & Calliagaro, 2018). It was addressed to “the peoples of Europe”, not a © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_3

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demos, but distinct peoples (Weiler, 2003, p.  20) or different demoïs (Cheneval & Nicolaïdis, 2017), united by “collective identity”, not in the sense of ethnic origin but through an “awareness of belonging together that can support majority decisions and solidarity efforts, and can permit it to have the capacity to communicate about its goals and problems discursively” (Grimm, 1995, p. 297). Against this backdrop, this chapter has two main aims: to trace the process of constitutionalisation of values in the EU polity in Sect. 3.1, and, in Sect. 3.2, to discuss the limitations of Article 7 TEU as they were revealed in the 2000s when the electoral success of the Freedom Party of Austria (Freiheitliche Partei Österreichs, FPÖ) opened a window of opportunity to address the question of member states’ compliance with values. I argue that the window closed without the issues at stake being addressed, only for these to re-enter the EU’s political agenda ten years later and they have remained a matter of concern since then. Ultimately, Sect. 3.3 retraces the emergence of the rule of law governance in the context of the Eastern enlargement, to show in the remaining chapters of the book how the process has shifted from Europeanisation and soft tools (Chaps. 4 and 5) to more European integration and hard tools (Chaps. 6 and 7).

3.2   From a Community Shape by Law to a Community of Rights and Values World War II created the conditions for a new Europe1 (Judt, 2005, p. 6). As argued by Kiran Patel, without the destruction and the fear of further German aggression, “European integration would never have shifted from the realm of the thinkable to the realm of politically plausible” (2020, p. 16). Economic recovery was one of the most urgent problems, but the greatest concern of the political elites of the time was the preservation of peace (Patel, 2020, p. 16). After two World Wars and millions of deaths, in the 1950s, it became clear that nationalism would not bring peace and that the protection of fundamental rights could not be confined solely to the states, and thus that additional norms and institutions beyond the state were necessary to ensure liberty and peace on the European continent (Fabbrini, 2014, p. 13). The treaties on which the European Communities  Parts of this section had been published in Coman, R. (2020), “Democracy and the Rule of Law: How can the EU uphold its values?” in Coman, R., Crespy, A., & Schmidt, V. (Eds.). (2020), Governance and Politics in the Post-Crisis European Union, Cambridge: Cambridge University Press, pp. 358–377. 1

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were based were meant to overcome the devastating political, social, and economic consequences of wars. And the European project imagined in the 1950s was above all designed to avoid the excesses caused by “unbridled state sovereignty” (de Witte, 2012, p. 26). The economic aspirations of the European project were clear. The legitimacy of the Communities established in the 1950s was anchored in their ability to solve the problems of the Western nation states. Democracy was a matter of concern too, although it was not in the DNA of the European integration project at the onset (Thomas, 2006). The democratic foundations were rather implicit: democracy was the purview and primary purpose of the Council of Europe, in a context in which the number of regional and international organisations was flourishing (Patel, 2020). While the preparatory workings leading to the establishment of the Council of Europe reflected democratic ideals, the discussions about the creation of the European Coal and Steal Community (ECSC) focused on economic principles and aims. Lasting peace was to be achieved through the binding of the states and peoples of Europe into “an ever closer Union” of economic interdependence and, increasingly, social interaction and “interculturality”, while lasting prosperity was to result from the creation of a common market based on the four freedoms of people, of goods, of services, and of capital (Walker, 2003, p. 46). Rights were enshrined in the treaties as an “economic aspect of liberties”, in a context in which “integration was seen as a threat to democracy and human and civil rights rather than their guarantee” (Patel, 2020, p. 153). Although democracy was not explicitly mentioned, it was self-evident that only states who shared the doctrine of liberal democracy and of the rule of law could be members (Magnette, 2000, p. 162). Not only did the six founding member states have rather similar political structures, but they were also members of the Council of Europe and formally committed to the rule of law and the protection of human rights (Thomas, 2006, p. 1191). But the question of democracy flared up in the 1960s. In 1962, Spain’s ambassador to the European Economic Community (EEC) sent a letter to the president of the European Commission, Walter Hallstein, expressing the desire of the Spanish government to participate in the European project. While the founding treaties included no mention of any specific democratic criteria for European member states to join the communities, the parliamentarians of the European Communities insisted on the importance of democracy as a sine qua non condition for accession together with other values which have permeated the treaties. In this regard, Willi Birkelbach, a German social democrat member of the European

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Parliamentary Assembly, drafted a report which marked an important landmark in the constitutionalisation of the European Communities at that time. The report stated that states whose governments do not have democratic legitimacy “cannot expect to be admitted in the circle of peoples who form the European Communities” (Thomas, 2006, p.  1198). The report also proposed that respect for human rights could be a condition for community membership, together with the rule of law, human rights, and fundamental freedoms (Thomas, 2006, p. 1198). The question of democracy flared up also in 1967 when a military coup put the Colonels into power in Greece and the European Community had to take a position (Patel, 2020, p. 159). The issue was more explicitly on the agenda of the European Communities in connection with the demands for accession formulated by Spain, Portugal, and Greece, in the context of their transition from authoritarian regimes to democracy (Thomas, 2006). Thus, the 1970s represented a phase of deep transformation which intensified despite the economic crisis (Patel, 2020, p.  11). Political elites sought to confer on the European project a clear raison d’être, beyond the establishment of a market and of economic cooperation between member states, seeking to strengthen the bonds of solidarity between the peoples of Europe and their feeling of belonging by establishing a community not only shaped by law, as the President of the High Authority Walter Hallstein put it, but also one based on rights and values (von Danwitz, 2014, p. 1312). In the 1970s, the heads of state and government of the nine member states issued a Declaration on European Identity at the European Council meeting in Copenhagen (1973). The principles of representative democracy, rule of law, social justice, and respect for human rights were set out as “the deepest aspiration of their people” and “fundamental elements of the European identity”. It is interesting to note in this excerpt from the Declaration that the rule of law is mentioned in reference not only to democracy, as in many constitutions of EU member states, but also to social justice, as seen in several national post-totalitarian and post-­ authoritarian constitutions (see Chap. 2). Moreover, in 1977, the European Commission issued a statement on the accession of Greece, Portugal, and Spain, emphasising that priority should be given to consolidating democracy prior to accession (Patel, 2020, p.  167). This represented a new opportunity to restate the fact that the Community’s duty was “to welcome all European States which apply the principles of a pluralist democracy and observe human rights and civil liberties and support

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the ideal of a strong and united Europe” (Resolution on the enlargement of the Community to include Spain and Portugal, 17 November 1982). Since then, the gradual integration of values in the treaties and the references to them in the jurisprudence of the Court of Justice complemented the process of constitutionalisation (Weiler J.  H. 2003, p.  16) undertaken since the Treaty of Rome (Stone Sweet, 2004). In this regard, the Single European Act (SEA) stated in its Preamble the will of its signatories to “promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the member states, in the European Convention on Human Rights and the European Social Charter, notably freedom, equality and social justice”. The year 1989 reshaped the continent, and the question of democracy was more important than ever. While the former communist countries in Central and Eastern Europe were about to start a complex economic, social, and political transition to democracy, in the West of the continent, scholars and political actors alike were deploring the democratic deficit of the EU (Grimm, 2015) and the impact of this on the European democracies (Schmidt, 2006). They called for the European project itself to be democratised to strengthen its legitimacy. Against this backdrop, the Treaty on European Union (TEU) signed at Maastricht in 1992 marked a critical juncture (Fabbrini S., 2015). The new revision of the treaties was meant to allow the “refoundation” of the Communities (Closa, 2005, p. 411). The TEU was an attempt to democratise the integration process and, by the same token, to strengthen the identity of the EU’s political regime (Magnette & Nicolaïdis, 2004). Seeking to establish an “ever closer Union among the people of Europe”, the Preamble of the TEU confirmed its signatories’ attachment to the principles of liberty, democracy, and respects for human rights and fundamental freedoms and of the rule of law. Not only did the EU have to respect the national identities of its member states whose systems of government are founded on the principles of democracy (Article F TEU), but, moreover, also the objective of its common foreign and security policy was to “develop and consolidate democracy and the rule of law, and respect for human rights and fundamental values” (Article J.1 TEU). By incorporating these principles in the treaties, the EU was firmly committed to preserving them inside its own legal order as well as inside the national legal orders (Manners, 2006, p. 46; Stewart, 2011, p. 66; Haukkala, 2011, p. 45). Also, preparing for the enlargement towards Central and Eastern Europe, during a meeting in Copenhagen in 1993, the European Council affirmed the set of core

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values with which future member states should comply in order to join the polity: “democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union” (European Council, 1993). Liberal democratic norms here have thus become a sine qua non condition for accession. The EU proclaimed itself a community of values. Although the EU does not have a monopoly on these values, they have become “standards of legitimacy” for post-1989 Europe (Pace, 2007, p. 1045). It has been argued that by internalising these principles, the EU has sought to give them a “European reading” (Lucarelli & Manners, 2006, p. 202). The Amsterdam Treaty marked a step forward in this direction with a new Article 6.1 stipulating that “the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the member states”. Values were no longer referred to in the treaties’ preambles, but in its core articles. With this provision, member states “declare who they are and what they stand for” (von Bogdandy, 2021, p. 79). Article 2 TEU assumes that member states respect and observe these values (Schroeder, 2021, p. 109) and also imposes a new type of constitutional discipline (Cramér & Wrange, 2000, p. 50). In addition, the Treaty of Amsterdam also contained the basis for the hotly-debated Article 7 TEU (Closa & Kochenov, 2019, p. 180) that the Treaty of Nice amended it, introducing a preventive mechanism (Kochenov, 2021). Article 7 TEU contains three stages. The first one allows the Council— drawing on “a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission” and acting by a majority of four-fifths of its members after obtaining the consent of the European Parliament—to determine that there is a clear risk of a serious breach by a member state of the values outlined in Article 2 TEU. Before making such a determination, the Council shall hear the member state in question and may address recommendations to it, acting in accordance with the same procedure (Art. 7(1) TEU). In the second phase, the European Council—acting by unanimity on a proposal by one third of the member states or by the Commission and after obtaining the consent of the European Parliament—may determine the existence of a serious and persistent breach by a member state of the values referred to in Article 2 TEU, after inviting the member state in question to submit its observations (Art. 7(2) TEU). In the third stage, the Council acting by a qualified

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majority may decide to suspend certain of the rights deriving from the application of the Treaties to the member state in question, including the voting rights of the representative of the government of that member state in the Council (Art. 7(3) TEU). Through the gradual constitutionalisation of values in the EU treaties, Articles 2 and 7 TEU have become the EU’s constitutional core, along with Article 49 TEU which details the accession conditions for new member states (von Bogdandy, 2021, p.  76). Later, the signatories of the Lisbon Treaty, which emerged from the revision of the Treaty establishing a Constitution for Europe, restated the commitment to “the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law” in Article 2 TEU. As De Burca argued, in this way, the Treaty strengthened the EU’s mission to “protect and promote democracy and liberal constitutionalism” (2018), to strengthen the values that underpin the European project: “respect for human dignity, freedom, democracy, equality, the rule of law, respect for human rights, including those of minority groups”, values that Article 2 TEU states “are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”, provisions which fits well within of the liberal paradigm (Lacroix, 2006, p. 26). Replacing the word “principles” with “values” was a topic of debates during the Convention on the Future of Europe in 2002 and 2003. The term “values” was chosen so as to create a sense of belonging, although the drafters of the treaties did not choose to substantialise these values (Coman, 2021, p.  87). As Lacroix has argued, for the sake of semantic clarity, it would have been desirable to choose the term “principles” or “norms” over that of “values” in order to recall that, “in a pluralist society, standards rationally accepted are a more effective method of conflict resolution than “shared values” (2006, p. 27). In the same vein, Smith (2019) also recalled the difference between a principle—something which “denotes a higher rule, a guide of acceptable conduct, which underpins the associated values (democracy, tolerance, pluralism etc.)”—and a value—something which is “ostensibly of morality, and morality denotes choice, variation, an individual or societal construct” (2019, p.  564). While principles rest on clear prescriptions for action, “value imports indeterminacy and invites the possibility of contestation” (Smith, 2019, p.  565). Despite their simplicity, each value can give rise to multiple

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meanings, usages, and practices that sometimes reveal themselves to be even contradictory (Constantinesco, 2008, p. 83).

3.3   The Legitimacy Gaps of Article 7 TEU: From Discursive Consensus over Values to Institutional Divides Only a few years after its enshrinement in the treaties, Article 7 TEU revealed its limitations.2 In October 1999, four years after Austria’s accession to the EU, the openly racist and xenophobic Austrian Freedom Party (FPÖ) received 26.9% of the vote in the elections. It’s the rise to power that attracted a great deal of attention at the European level. Although a rather similar situation had occurred in 1994 when Silvio Berlusconi invited the National Alliance of Gianfranco Fini into his government (Merlingen et al., 2001, p. 60), 1999 was the first time in the history of European integration that several European leaders expressed their concerns about the political situation in another country of the EU (Coman, 2018, p. 148). In addressing this issue, EU member states leaders were entering “uncharted waters” (Leconte, 2005, p.  621). Antonio  Gutteres—Social Democrat prime minister of Portugal and president of the European Council under the Portuguese rotating presidency of the Council of the EU—declared that the FPÖ’s victory in the Austrian parliamentary elections and the growing intolerance towards migrants in Austria posed a “question of principles and values” (Coman, 2018, p. 148). It was the first time since the revision of the treaties that the leaders of member states and EU officials actively engaged in a debate about the meaning of Europe as a community of values. Yet the political situation in Austria divided actors in the main EU institutions, and the success of the FPÖ awakened concerns about the rise of right-wing populist parties in other member states (Wagner & Meyer, 2017). In the European Council and in the Council, the first to express concerns about the political situation in Austria were French President Jacques Chirac (affiliated to the EPP), Prime Minister José-Maria Aznar of Spain (member of the EPP), and Belgian Foreign Minister Louis Michel 2  Parts of this section have been published in the chapter “Protecting the Rule of Law and the State of Democracy at the Supranational level: Political Dilemmas and Institutional Struggles in Strengthening EU’s Input, Output and Throughput Legitimacy” (Coman, 2018).

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(member of the Liberal Mouvement réformateur, currently affiliated to Renew), with Michel calling for “determined action” (Agence Europe, 31/01/2000). While some member states were rather reluctant to take the issue further, Belgium—where the far right Vlaams Blok (new Vlaams Belang) party had been progressing in elections since the end of the 1970s, gaining more seats in 1991  in the Chamber of Representatives—proactively engaged in the debate. In reference to the situation in Austria, the Belgian Foreign Minister Louis Michel argued that “initiatives should be taken to try to prevent and respond more effectively to problems of this kind” (Agence Europe, 14 /02/2000). In a context in which the FPÖ leader Jörg Haider on more than one occasion expressed a leaning towards Nazi sympathies, Louis Michel put the question of rising nationalism, racism, and xenophobia on the table at the EU level, arguing that such matters were no longer a national matter (Agence Europe, 14/02/2000). Despite divisions among the EU14 (Merlingen et  al., 2001, p.  66), political actors sought to avoid creating a precedent for inaction, in particular with a view to the enlargement to Central and Eastern Europe, where there was historically fascination for far-right parties. Thus, under the Portuguese presidency of the Council of Ministers from January to June 2000, on 31 January 2000, the Fourteen adopted a declaration that was outside the framework of Article 7 TEU. The Portuguese prime minister informed the president and the chancellor of Austria, Wolfgang Schussel, that “there would be no business as usual”, and that the governments of the Fourteen “will not promote or accept any bilateral official at political level with an Austrian Government integrating the FPÖ”; and ultimately, that “Austrian Ambassadors in EU capitals will only be received at a technical level” (Portuguese Presidency of the EU on behalf of 14 Member States, 31 January 2000). Yet, by acting outside the framework of the EU, the Fourteen weakened the position of the EU institutions and framework established for the respect of values (Cramér & Wrange, 2000, p. 31). Jörg Haider, leader of the FPÖ and governor of the province of Carinthia, reacted vehemently to the allegations of the Fourteen and even invoked the question of Austria’s secession from the EU. In a joint declaration with Wolfgang Schussel (Austrian People’s Party, member of the EPP), Haider expressed Austria’s adherence to the “spiritual and moral values which are the common heritage of the peoples of Europe and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Schüssel &

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Haider, 2000). For the Austrian government, the EU’s action was a violation of “fundamental legal principles and the spirit of the European Treaties”, including the recognition of a democratic government committed to the rule of law (Duxbury, 2000). The EP and the Commission were divided about the action to be taken. For the Commission, President Romano Prodi disapproved of the practice adopted by the Fourteen of coordinating decisions outside the treaties (Merlingen et  al., 2001). Its exclusion from the debates weakened the Commission’s role and reduced its visibility although the treaties granted it power as a gardienne des traités. The Commission president—who was informed not consulted over the sanctions—maintained that the Commission will continue to watch over their provisions and values, declaring that the sanctions imposed on Austria were “an error of judgment and should be swiftly lifted” (The Guardian, 13/07/2000). In his view, the role of the Commission was not “to isolate a member state but to ensure it stays within the fold” (Agence Europe, 3/02/2000). In the European Parliament, President Nicole Fontaine, member of the EPP, stated “that it would be ‘intolerable’ for a party that denies the EU’s fundamental principles to enter office in a Union county” (Agence Europe, 28/01/2000). The members of the two main political groups in the EP— the European People’s Party (EPP) and the group of the S&D—were divided. Despite political divergences, after a two-day debate in Strasbourg, MEPs adopted a resolution (with 447 for, and 17 votes against, plus 45 abstentions) calling on the Council and Commission, in the event of the existence of a serious and persistent breach of the principles mentioned in Article 6(1) TEU to suspend that state’s rights deriving from application of this Treaty (Agence Europe, 4/02/2000). The debates about what the EU should do when the common values are threatened by racism and xenophobia revealed the limitations of the framework designed to address such issues (Berit Freeman, 2002, p.  110). Though Article 7 TEU clearly detailed the roles and attributions of EU institutions in suspending the rights of a member state that fails to observe the EU’s common values, the following issues remained unclear: When can Article 7 TEU be triggered? What does a clear risk of a serious breach by a member state mean? How should the existence of a serious and persistent breach by a member state of the values be determined? (Coman, 2020, 2021). Against this backdrop, at the European Council at Feira in June 2000, the EU leaders sought to fill this legal void and requested that the president of the European Court of Human Rights, Luzius Wildhaber, appoint

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three people “to prepare a report based on thorough investigation of the Austrian Government’s attitude to common European values, in particular regarding the rights of minorities, refugees and immigrants; and on the development and political nature of the FPÖ” (Hummer, 2000, p. 77). The Wise Men report was drafted by Martii Ahtisaari (former president of Finland), Jochen Frowein (director of the Max Planck Institute for Comparative Public Law and International Law at Heidelberg and former vice-president of the European Commission of Human Rights), and Marcelino Oreja (former Spanish minister of foreign affairs, former secretary-general of the Council of Europe, and former member of the Commission of European Communities) and this after visiting Austria for three days (Ahtisaari et al., 2000). The report concluded that the Austrian government was committed to the common European values; it also emphasised that Austria’s respect for the rights of minorities, refugees, and immigrants was not inferior to that of other member states (Duxbury, 2000). Contrary to the declaration of the Fourteen, the authors of the report concluded that regarding the rights of national minorities, the Austrian standards were even higher than in many other member states. While the assessment was rather positive with regard to the Austrian policies towards refugees and migrants, the text did contain a more critical assessment of the political evolution of the FPÖ, which was qualified as a “right wing populist party with radical elements” (Ahtisaari et al., 2000, p. 32). Yet, to strengthen the legitimacy gaps of the institutional framework established to safeguard the common values at the supranational level, the report suggested creating a Human Rights Office that would report to the European Council, and also advocated the appointment of a Commissioner in charge of human rights issues. It recommended the development of a mechanism to monitor and evaluate the commitment of individual member states with respect to common European values (something which was eventually established a whole decade later). To this end, the report suggested extending the status, budget, and missions of EU Observatory on Racism and Xenophobia, and proposed the creation of a European Agency of Human Rights (Ahtisaari et  al., 2000, p.  34). Following the recommendations issued by the three “wise men”, a majority of member states believed that Article 7 TEU should be amended to introduce a surveillance and warning mechanism, and this led to the introduction of the preventive mechanism (Article 7 TEU paragraph 1, introduced by the Treaty of Nice). But the revision did not address all the questions at hand,

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and Article 7 TEU in the end provides “an insufficient legal basis for a successful intervention” (Closa & Kochenov, 2019, p. 179). In 2003, the Commission published a Communication on Article 7 TEU titled “Respect for and promotion of the values on which the Union is based” (COM(2003) 606 final). The text aimed to shed light on two aspects: the conditions for applying this article and the means for safeguarding the common values in the Union. The Commission’s desire to reflect on this procedure was determined not only by the situation in Austria. It has been often argued that the prospect of the Eastern enlargement motivated the leaders of by then 15 member states to equip the EU to safeguard its values. Yet, the context of the 1990s shows, however, that racism and xenophobia were a matter of concern for several Western democracies too. As guardian of the treaties, the Commission embraced a pro-active role pleading for issues related to values to be approached “in a spirit of prevention” rather than through sanctions. It also underlined the specificity of Article 7 TEU which from the onset was not meant to be applied to individual breaches, but to situations concerning a more systematic problem. Article 7 TEU was meant to remain an exceptional procedure to be used in unprecedented situations. Yet the Commission provided an ambitious interpretation stating that the scope of Article 7 was not confined to areas covered by Union law, asserting the legitimacy of the EU to act also in the event of a breach in an area where the member states act autonomously (European Commission, 2003, p.  3). As far as the institutional architecture of Article 7 TEU was concerned, the Commission contended that the procedure “gives a discretionary power to the Council both to determine that there is “a clear threat of a serious breach” and to determine that there is “a serious and persistent breach”. The Commission also pointed out that “the Council’s discretionary power cannot evade democratic control by the European Parliament, in the form of the assent that it must give before the Council can act”. As far as the assessment of the situation in member states was concerned, the Commission proposed that independent figures should be involved, “to provide a full and objective picture of the situation on which the Council has to take a decision” (Commission, 2003, p. 6). In April 2004, the EP adopted a report on the 2003 Communication of the Commission on Article 7 TEU (PE 335.128). While the Parliament appreciated the Commission’s initiative, it did not share the Commission’s opinion that “sanctions should be avoided”. Recital 4 of the report stated

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that avoiding sanctions would give the impression that the EU does not have the possibility or the will to defend its values (p. 6). The EP proposed the extension of Parliament’s right of initiative and assent (in all instances where the European Council or the Council takes a decision pursuant to Article 7); the extension of citizens’ right of petition in all instances covered by Article 7 TEU; and the possibility for the member state concerned to bring an appeal before the European Court of Justice (ECJ) against the determination of the existence of severe and persistent breaches of common principles, values, and fundamental rights of the Union (PE 335.128, p. 12). The debate on Austria opened an opportunity window to address the procedural gaps of Article 7 TEU. Yet despite these proposals the framework remained incomplete until the beginning of 2010s, when new tools were established that the next chapter analyses.

3.4   From the Copenhagen Declaration to the Copenhagen Criteria: The Establishment of a Rule of Law Governance At the beginning of the 1990s, by deciding to open accession negotiations with the former communist countries, EU member states mandated the Commission to guide the process and to report to the Council on its progress. Enlargement was not a new process, yet there were considerable differences between the former communist countries and the Western European member states, and this determined EU institutions not only to introduce a new set of criteria but also to formalise the process, steered by the Commission. The conditions established at the European Council in Copenhagen in 1993 gave the EU significant “leverage in transferring to the applicant countries its principles, norms, and rules” as well as in shaping their institutions (Grabbe, 2002, p. 93). Nonetheless, said conditions provided little guidance as to how political criteria should be implemented to establish democratic institutions and to reduce the political influence inherited from the communist regimes over the judiciary (Coman, 2009; Kochenov, 2008). Promoting democracy and the rule of law was a new task for the Commission, as was the EU’s ambition to act as an international actor spreading its norms and values throughout the world. As a newcomer in

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the rule of law global promotion field, the Commission’s approach relied mainly on the savoir-faire of the international rule of law community (Piana, 2010). The Commission borrowed ideas and tools—such as conditionality—from a flourishing international community that brought together a wide range of actors, both American and European. Through emulation, the Commission gradually translated the political conditionality defined by the European Council in 1993 into concrete prescriptions for reforms to support the candidate countries in their attempts to establish democratic institutions that resonate with the EU’s “acquis” and values (Coman, 2009; Kochenov, 2008), arguing, like many other international actors (see Chap. 2), that the rule of law is a sine qua non condition for both economic development and democratisation. In a context in which the rule of law was seen as a panacea, priority was given to building up new institutions and strengthening the formal rules in the former communist countries (Pech, 2010, p. 359), with justice reforms being identified as urgent priorities (Kochenov, 2008). Although the rule of law is a multi-layered concept, in the context of enlargement the Commission gave it a narrow definition, and like other regional and international organisations, emphasised the importance of the independence of the judiciary (Nicolaïdis & Kleinfeld, 2012). Consolidating the guarantees of judicial independence stood at the core of the process, in particular “the (re)organization of the judicial systems and the insertion of institutional mechanisms that ensure the independence of the judicial bodies and the impartiality of adjudication” (Piana, 2010, p. 17). As Heidbreder writes, the Commission had “extraordinary discretion in how to interpret and to implement the accession criteria and was endowed with far-reaching independence in developing and applying steering instruments vis-à-vis the candidate states” (2011, p. 8). Overall, the Commission recommended enhancing the independence, impartiality, efficiency, and accountability of the judiciary as overarching principles that support the rule of law (Kochenov, 2008). In its regular reports assessing the progress made by the candidate countries, the Commission called for the adoption of new laws on the organisation and functioning of the judiciary and recommended a series of measures concerning the selection and career path of judges and prosecutors (Coman, 2009). Particular attention was devoted to the establishment of new institutions such as judicial councils—established in several Western democracies after World War II as a guarantee for the independence of the judiciary (see Chap. 2). The Commission was set to become an “entrepreneur” of judicial independence, to borrow an expression from Antoine Vauchez (2020), and the

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promotion of independence has become a central “governing technique” (Vauchez, 2020, p. 19). New management techniques and soft law (White, 2020, p. 75) came to the fore in late 1980s and beginning of the 1990s, and the Commission was not immune to this trend. Two main tools emerged with the aim of shaping institutional change through collaborations between national administrations (Papadimitriou & Phinnemore, 2004): TAIEX (Technical Assistance and Exchange of Information) and Twinning (which brought together Western civil servants and experts and their Central and Eastern European counterparts). The European Commission’s expertise on how to strengthen the rule of law and establish stable institutions came from member states’ administrations. These tools have become important vectors of socialisation and provide a laboratory of ideas to design judicial reforms in the former candidate countries, “instruments of policing the EU’s conditionality” (Papadimitriou & Phinnemore, 2004), implying a horizontal circulation of ideas from member states to candidate countries (Tulmets, 2006). The process was not intended to lead to a harmonisation of institutional models to strengthen the independence of the (Coman, 2009). Here as in other areas, the Commission encouraged flexible procedures, “conducive to experimentation, learning and stimulation of exchange and the emulation of best practices” (Bartolini, 2011, p. 5) through the participation of national administrations. The choice of institutional models through which the conditions were to be achieved remained very much in the hands of domestic political elites (Coman, 2014, p. 899). As Sadurski put it, “the influence of conditionality was not in the form of suggesting very specific institutional solutions and devices (…) but rather through general templates or thresholds” (2006, p. 31). But even so, some more critical voices argued that the process “been pursued as a veritable colonization process” (Smilov, 2006, p. 331). Gradually, the Commission managed to define its own approach, namely, to identify standards to be reached, to determine benchmarks for evaluation, and to justify the importance of the judicial reforms in normative terms (Piana, 2010). In so doing, the Commission has also developed an informal network involving a variety of actors such as the Council of Europe, the United Nations, the World Bank, and a series of well-known NGOs such as the Open Society Institute, Freedom House, and Transparency International. The network provided the Commission with the necessary expertise in terms of assessment and normative justifications for reforms. Less hierarchical and less formal (Bartolini, 2011, p. 5), such

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networks link different kind of actors (Dallara & Piana, 2017). These methods of monitoring and enforcing the rule of law have the advantage of being less hierarchical and less formal. They call on domestic and international actors to share best practices, indicators, goals, and definitions, as well as agreeing upon standards, guidelines, benchmarks, indexes, and indicators to consolidate the rule of law and to establish appropriate instruments of public policy. In this way, decision-making becomes a “collaborative problem-solving process” (White, 2020, p.  76). Yet, despite their added value for governance, “governing without governments” raises concerns concerning fragmentation, steering, and accountability (Pollack, 2005, p.  381) as it allows transnational actors to circumvent legislatures and to contribute to the empowerment of non-state actors. To quote White, “governance takes power as it finds it” (2020, p.  76). By driving the Eastern enlargement process, the EU Commission, “by stealth”, has established a rule of law governance, which is shifting, since 2010 towards European integration, as the next chapters will show.

3.5   Conclusions Through this gradual constitutionalisation, the EU has gained some “abstract sense of itself” (Walker, 2012, p. 81) and a collective identity, yet its values have remained vague. Values are perhaps, by definition, vague (Patel, 2020, p. 175), “fragile and vulnerable” (Patel, 2020, p. 148), and often “taken for granted” (Foret & Calligaro, 2018). The debates about the rise to power of a party like the FPÖ, with a xenophobic and racist message, already revealed in the 2000s how difficult it is to address such issues at the supranational level. The debates on the Austrian situation not only announce the potential for divisions within and between EU institutions but also showed the incompleteness of the institutional framework that has been established. Article 7 TEU explicitly enshrined the authority of each institution involved in the process. But what remained a grey zone was the conditions under which it should be triggered. The Austrian debate opened a window of opportunity in the 2000s to address these questions, but that window closed, and the problems remained, re-­ emerging on the EU agenda in the 2010s, a few years after the accession of Central and Eastern European member states. In the enlargement context, the European Commission played “by stealth” a paramount role as agenda setter in translating the Copenhagen criteria and its associated conditions into concrete prescriptions for reform and a mode of

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governance. The rule of law and judicial independence occupied a central place as sine qua non conditions for accession. Through hard and mainly soft tools, the Commission put forward a narrow understanding of this principle and developed a mode of governance involving a wide range of actors that helped monitor and guide the process. The centrality of the Commission was uncontested because of the asymmetry of accession negotiations, but this is no longer the case, as the next chapter shows. The EU’s rule of law policy is no longer shaped “by stealth” but “by publicity” and multiple legitimacies, often in tension.

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CHAPTER 4

The Commission’s Rule of Law Soft Tools: Towards the Establishment of a Monitoring Regime?

4.1   Introduction Despite the gradual constitutionalisation of values (Chap. 2), it seems that the EU lacks the power of enforcement or the political will to use it when its common values are undermined (Schroeder, 2019). The constitutionalisation of values was meant to strengthen the identity of the EU, but this process has partly left the question of compliance open to interpretations, perhaps because it was taken for granted that said values are indisputably shared by member states or because the signatories of the treaties supposedly believed in the ability of European political elites to reach consensus without major confrontations at the EU level. Since 2010, the Commission has been confronted with developments in member states pertaining directly or indirectly to the rule of law, highlighting the fragilities of the EU’s foundations (von Bogdandy, 2021, p. 78). The search for new tools to ensure compliance has become “a pressing issue” (Batory, 2016, p.  697) on Commission’s agenda to complement existing tools such as infringements and Article 7 TEU. How to put pressure on “errant” member states (Batory, 2016, p. 688)? How well equipped is the EU, legally and politically, to defend democracy and the rule of law within its member states (Ginsburg & Bugaric, 2016, p.  75; von Bogdandy & Ioannidis, 2014)? As the EU Justice Commissioner Viviane Reding put it, “every time there has been a threat or a potential threat to the rule of law in one © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_4

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Member State, all institutions have turned to the Commission as the impartial arbiter asking us to take action” (Press Release Strasbourg 14 March 2014). The question is: How does the European Commission, guardian of the treaties, shape the EU’s rule of law policy? Is the Commission, whose independence is enshrined in the treaties, still a proactive policy entrepreneur and agenda-setter, as it used to be portrayed in EU studies in the context of enlargement, when the first rule of law policy tools were coined? Since 2010, the Commission’s authority, power, and legitimacy in dealing with rule of law concerns have been vehemently disputed. In January 2012, when the President of the European Commission, José Manuel Barroso (member of the EPP), announced that legal action would be taken against Hungary over its reforms to the Central Bank, data protection and the judiciary, the Hungarian Fidesz party government argued in response that the assessment was “unfair”, accusing “Brussels” of interfering in domestic affairs and comparing “European bureaucrats” to “Soviet apparatchiks” (Financial Times, 15/03/2012). When in 2015 the Commission led by Jean-Claude Juncker announced that it would examine whether the changes in the field of justice in Poland had led to a systemic threat to the rule of law, the Justice Minister Zbigniew Ziobro, “compared the Commissioner’s intervention with German oppression in Poland during World War II” (Dinan, 2017, p. 80). Against this backdrop, I argue that the Commission is expected to fulfil its role in a context of dissensus and “scarce appetite” from member states for a more active role in scrutinising domestic compliance with the rule of law (Closa, 2019, p. 707), as an illustration of their “sovereignty-­defending reflex” (Coman, 2016).While the enlargement process allowed the Commission to be empowered “by stealth” (Heidbreder, 2011), from the 2010s onwards, its room of manoeuvre has been constrained by member states through political and legal arguments, raising doubts about its authority, power, and legitimacy. As Beetham (1991) put it, there are three conditions for power to be legitimate: “power can be said to be legitimate to the extent that it conforms to established rules”; “the rules can be justified by reference shared beliefs”; and, ultimately, there has to be “evidence of consent by the subordinate to the particular power relation” (Beetham, 1991, p. 16; Bolleyer and Reh, 2012). Yet, over the past decade, the legal grounds of the Commission’s power and authority have been deeply tooted in dissensus and contestation. To overcome dissensus and to reach consensus through dialogue, and by the same token to avoid confrontation (Closa, 2019, p.  702), since

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2010, the Commission has developed a set of soft tools using mainly two intertwined strategies (Table  4.1): agency seeking through commissioning (Copeland & James, 2014) and policy seeking. The former is meant to strengthen the Commission’s expert power, to increase resources (such as expertise), and to decrease its dependence on other actors (Schimmelfennig, 2020, p. 345). The latter pursues pure policy goals. By establishing the Justice Scoreboard and the Rule of Law Report, the Commission has sought to strengthen its ability to assess the efficiency, quality, and independence of national justice systems and to identify shortcomings in their functioning. These tools consolidate not only the Commission’s expert power but also its agenda setting power. In a polity like the EU, established with the fulfilment of economic goals in mind and characterised by the imperatives of maintaining a broad policy space including a single market, a monetary union and fiscal and budgetary coordination (White, 2020, p.  44), justice systems are “functional ends”. They are subordinated to some extent to the belief in the market as a self-regulatory mechanism that creates prosperity, as well as the promise of growth and efficiency. Justice reforms are meant to support the edifice. The chapter corollary shows that in times of increased dissensus and contestation, the Commission strategically emulates and partially innovates existing policy tools, leading to an “economisation” of justice systems and rule of law tools. The European Semester (2011) was created to douse the flames of the Eurozone crisis, initially contested. Judicial reforms have been included in this process of coordinating economic and budgetary policies, anchoring them in the EU’s economic framework and ambitions. The EU Justice Scoreboard (2013) is inspired by a similar tool used by the Council of Europe which sparked some moderate contestation. Table 4.1  The strategies used by the Commission in shaping EU’s rule of law policy Tools strategy

EU Justice Scoreboard

European Semester

Agency seeking Assessment Assessment capacity through Policy seeking capacity through commissioning (using emulation established tools for new problems) Consensus/ Consensus Contestation dissensus nexus High Decreasing

Rule of Law Framework Problem-solving capacity through institutional innovation Dissensus High

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The only innovation in terms of tools was the Rule of Law Framework established in 2014 and that was highly contested. Ultimately, as the chapter shows, the aforementioned soft tools resulted in modest (if not null in some cases) impact on the ground. Scholars have critically assessed these as a façade for inaction (Kochenov & Pech, 2016), yet in terms of modes of governance, these tools, I argue, gradually contribute to the establishment of a rule of law comprehensive monitoring regime which puts forward a thin understanding of the rule of law, anchored in the legal foundations of the EU and articulated with its economic aims. The chapter is organised as follows: Sect. 4.1 starts with a discussion about the transforming role of the Commission in its relations with member states. Section 4.2 discusses the “economisation” of the rule of law through the European Semester and the EU Justice Scoreboard, while Sect. 4.3 focuses on the disputed creation of the Rule of Law Framework (RLF) and its outcomes.

4.2   The Commission: A Constrained Policy Entrepreneur? Historically, the European Commission’s role in shaping EU integration is uncontested (Becker et al., 2016). Neither purely a secretariat of member states nor a federal government (Magnette, 2003, p.  95), the Commission is a complex institution entrusted with political, executive, and quasi-legal powers, whose main role is to promote the general interest of the Union (Article 17 TEU). The Commission drives European integration by proposing policy ideas; it initiates legislation, manages the budget, and scrutinises the implementation of policies as well as the respect of the treaties and member states’ compliance with secondary legislation (Hix & Hoyland, 2011, p. 35). In so doing, the Commission acts as a core executive, while its administration performs a wide range of tasks from drafting legislation to administrative work, and from monitoring to regulatory roles. The Commission pursues political goals and, like any bureaucracy, also performs management functions (Nugent & Rhinard, 2019, p. 205). While some scholars in the past have portrayed the Commission as a “purposeful opportunist”, able to expand its competences (Hartlapp, 2017, p.  304), others, even prior to the entry into force of the Lisbon Treaty, noticed its decay as well as its tendency to become more

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“intergovernmental, less autonomous” (Peterson, 2008, p.  761). Not only did the Treaty on European Union (TEU) mark a critical juncture (Fabbrini, 2015) for the foundations of the EU by expanding its scope of action (Puetter, 2012), but the Eurozone crisis also challenged the EU’s modes of governance (Schmidt, 2020). Against this backdrop, many have argued that the Commission’s power has declined (Dehousse, 2015), and that the institution lost its role as primus inter pares in setting the agenda. Its power has been eroded both by the treaties and the behaviour of other institutions, in particular the European Council (Delors, 2013, p. 171), which more often acts as an agenda-setter in day-to-day decision-­ making,  the role traditionally assigned to the Commission (Dehousse, 2015). The European Council and the Council have become the gravity centres of EU decision-making (Puetter, 2012), instructing supranational institutions (Bickerton et al., 2015). This view seems to confirm an old assumption that the Commission is an agent of member states (Pollack, 1997), with little room to act independently. In contrast, the new supranationalists have observed a more subtle, continued empowerment of supranational institutions (Bocquillon & Dobbels, 2014), through other means, (Bauer & Becker, 2014), revealing the Commission’s ability to go beyond the preferences of member states (Guidi & Guardiancich, 2018) and act as a “runaway agent” (Pollack, 1997), even in a context of increasing intergovernmentalism (Fabbrini, 2015). Once member states agreed to entrust the Commission with management duties (policy tools), new opportunities emerge to provide impetus for policymaking and institutional discretion (Becker et al., 2016, p. 1013). Besides these two theoretical accounts—labelled the new intergovernmentalism and the new supranationalist approaches—others have argued that the relationship between the Commission and member states is far more complex (Hartlapp, 2017, p. 8). As this chapter shows, actors themselves are in constant interactions, whether it is “supranational actors persuading intergovernmental actors to take action” or, alternatively, “intergovernmental actors threatening supranational ones in order to constrain their action” (Schmidt, 2020, p. 105). Seeking to avoid confrontation, the Commission itself prefers to engage in dialogue and persuasion with member states because of the EU’s reliance on the national authorities for compliance (Closa, 2019, p. 697). In some circumstances, member states are keen to empower the institution to bind their hands. In other instances, member states raise political objections and threaten legal action to constrain the Commission’s autonomous or discretionary action

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(Schmidt, 2020, p.  106). Alternatively, when deciding to act, the Commission anticipates the reaction of member states (Closa, 2019, p. 696). As this chapter outlines, member states agreed to establish the European Semester and expand it into a wide range of policies, including justice systems. Yet when the Commission launched the first process of coordination of policies in the European Semester, many member states deplored its intrusion in “core state powers” (Genschel & Jachtenfuchs, 2014) but eventually accepted this tool as a “necessary evil” to solve their coordination and compliance problems (Moravcsik, 1999) through deliberation. Member states have also been reluctant to see the Commission proposing the EU Justice Scoreboard and the Rule of Law Framework, designed as a preliminary step to Article 7 TEU. When the Commission proposed establishing the EU Justice Scoreboard, some member states, fearing the Commission’s empowerment “by stealth”, contended that statistics and indicators on the functioning of the judiciaries are provided by other regional organisations such as the Council of Europe and the Venice Commission, and that the Commission should not duplicate them (Coman, 2016). When the Commission proposed creating the Rule of Law Framework (Oliver & Stefanelli, 2016), the Council Legal Service (CLS) contested the framework’s legal basis and by the same token its authority, although some member states were rather supportive of such a tool (Table 4.1). To add complexity to complexity, as this book shows, both supranational and intergovernmental actors are divided and their views on the issues at stake often highly polarised. The relationship between the Commission and member states is also complexified by the diversity of member states’ preferences and coalitions in the Council (discussed in Chaps. 6 and 7), which change depending on the issues at stake.

4.3   Anchoring Justice Systems Reforms in EU’s Economic Governance: The Justice Scoreboard and the European Semester Following the revision of the Hungarian Constitution and the first measures undermining the independence of judicial institutions, much debated in the EP (see Chap. 5), José Manuel Barroso, in his 2012 State of the Union Address, called for a “better developed set of instruments”—not just the alternative between the “soft power” of political persuasion and

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the “nuclear option” of Article 7 TEU. Against this backdrop, in 2013, Viviane Reding, then vice-president of the European Commission, began a process of consultation with the goal of reflecting on the necessary institutional framework to safeguard the rule of law and objectively assess the functioning of the judiciary within member states. In response to the Commission’s consultation Les assises de la justice, some member states called for the revision of the treaties; others were in favour of increased co-operation between the European Commission, the European agencies, and the actors/networks with which Commission already worked in the enlargement policy, including the Council of Europe and the Venice Commission. Strengthening the Commission’s cooperation with other international organisations and bodies was one of the most popular ideas among member states (Coman, 2016) as a means of externalising both the assessment and the more normative discussions about democracy and the rule of law in the EU polity, although the latter were enshrined in Article 2 TEU.  As an illustration, in this consultation in 2013, Estonia’s government was not willing to support the creation of new rule of law tools as from its perspective, as that would require the amendment of the treaties to expand EU institutions’ competences (Estonia’s contribution, 2013). Poland’s representatives argued that “the EU should make the most of its existing powers” considering that it was “not appropriate to take much effort simply in order to reinvent the wheel” (Poland’s contribution 2013). The question of the legal basis of new tools was on the table. Austria, Ireland, and Slovenia’s representatives emphasised that the Commission should avoid duplicating the work of other international organisations such as the Council of Europe. In addition to these individual positions, a strong consensus emerged within the Council in favour of “a collaborative and systemic method” of the rule of law (Council conclusions, Justice Ministers, June 2013) and increased cooperation with other international organisations (European Council, May 2013; June 2013; Council, JHA, June 2013). Agency Seeking: The Expert Power of the Commission in Assessing the Efficiency, Quality, and Independence of Justice Systems Against this backdrop, the EU Scoreboard was designed to help the Commission provide “objective, trustworthy, and comparable data on the quality, independence, and efficacy of the judiciary in all EU countries”, and to identify “shortcomings” and “good practices and trends over time”

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(COM(2013) 160 final, p.  3) through a series of objective indicators, although such indicators are not neutral (Cappellina, 2018). The EU Justice Scoreboard is not a pure innovation as policy tool, rather it emulates a similar tool established by the Council of Europe and its body, European Commission for the Efficiency of Justice (CEPEJ). The Scoreboard is a combination of both know-that and know-how (White, 2020, p. 117), that is, with both theoretical and empirical knowledge. Know-that takes the form of predictions. One example: the Scoreboard is rooted in the assumption borrowed by the Commission from international financial organisations, such as the World Bank, the IMF, and the OECD, according to which national justice systems have an impact on the economy (COM(2014) 155 final, p. 4). Know-how, in contrast, relates to handling challenges (White, 2020, p. 118), to allow the Commission to draw on one of its greatest sources of legitimacy: its ability to act as problem solver. Know-how and know-that are the essence of technocracy (White, 2020, p. 123), allowing actors to legitimise the ways in which they shape the agenda and cultivate a sense of necessity. The Scoreboard seeks to strengthen the Commission’s ability to produce expert assessments. It provides a quantitative assessment of the efficiency, quality, and independence of national justice systems, drawing on the principles of new public management (Vigour, 2007, p. 56). It offers an overview of the functioning of the justice systems in all EU member states (Dori, 2015, p. 11), to objectify evaluations and to display the challenges that each member state is facing. On this basis, the Commission proposes Country-Specific Recommendations (CSRs) in the European Semester, as discussed in the next section. The Scoreboard was designed as a “non-binding tool” (COM(2014) 155 final), yet at the same time, it was an “evolving tool”, meant to gradually expand to other dimensions, yet without promoting any particular type of a justice system, as the Commission often underlines (COM(2013) 160 final, p. 3). Since 2012, the Scoreboard has provided an overview of the efficiency of the justice systems in all EU member states according to a number of dimensions such as the length of proceedings, the clearance rate of the courts, the number of cases, the number of pending cases, and the length of proceedings in areas related to EU legislation such as competition, consumer law, public procurement, and so forth (Dori, 2015, p. 9), covering civil, commercial, and administrative cases. It also focuses on the quality of justice with particular attention to training, courts’ budgets, human resources, the availability of information and communication

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technologies, as well as the availability of alternative dispute resolutions in EU member states. It also measures the perceived and structural independence of national justice systems. As a sign that such tools inevitably evolve, the dimensions covered by the Scoreboard have changed over time to focus on new and urgent issues such as the independence of the judiciary. For instance, the Commission used the 2021 Scoreboard to provide an overview on the institutions involved in the nomination of judges in the Supreme Courts of member states, a hot topic on the agenda of all EU institutions, considering the politicisation of the judiciary in some EU member states. Unsurprisingly, on the dimensions selected—efficiency, quality, and independence of the judiciary—the Scoreboard displays a diversity of challenges in member states. Some countries tend to perform well on all indicators, while others find themselves at the bottom of the rankings. The 2021 Scoreboard shows, for example, the total government expenditure on law courts in Euro per inhabitant. Results show that 13 old EU member states register the highest scores, while the new member states, as well as Portugal, and Greece lag behind. The justice systems in Luxembourg, Denmark, Ireland, the Netherlands, Sweden, Austria, and Finland are the best financed, while the lowest expenditure scores are registered in Bulgaria, Slovakia, Croatia, Romania, Lithuania, and Cyprus. To measure efficiency, the Scoreboard displays the number of incoming administrative, civil, and commercial cases in each member state (the highest being in Denmark, Austria, and Poland and the lowest in Luxembourg, Cyprus, and Malta) and the estimated time taken to resolve civil, administrative, and commercial cases (lower in Denmark, Latvia, Greece, and Lithuania and higher in Cyprus, France, Italy, Malta, and Spain, among others). Ultimately, the Scoreboard displays the level of independence as perceived both by citizens and by economic actors. Here, old EU member states (Austria, Finland, Denmark, Luxembourg, the Netherlands, Denmark, Ireland, Sweden) tend to perform better than the Central and Southern European member states (the lowest scores being registered in Croatia, Slovakia, Poland, Bulgaria, Italy, Spain, Hungary, Slovenia, Portugal, and Cyprus). Yet the picture is mixed. The Commission identifies shortcomings in all member states. While the Scoreboard strengthens the expert power of the Commission and legitimizes its action as agenda setter, this tool still relies heavily on a variety of sources of information, including the Commission for the Evaluation of the Efficiency of Justice (CEPEJ) of the Council of Europe,

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Eurostat, World Bank, World Economic Forum, and the European judicial networks, in particular the European Network of Councils for the Judiciary (COM(2014) 155 final). The scoreboard is conducted in “close cooperation with the European Network of Councils for the Judiciary, Network of the Presidents of the Supreme Judicial courts of the European Union and the Association of the Councils of State and Supreme Administrative Jurisdictions of the EU” (COM(2018) 364 final, p.  5). Obtaining data from member states is not an easy task either for CEPEJ or for the EU Commission. It often happens that member states do not communicate data, and for this reason, the quality of the assessment is sometimes disputed (Dori, 2015, p. 26), although this is only a marginal debate. Agenda-Setting Through Soft Tools: The European Semester Another strategy that the Commission has used in shaping the EU’s rule of law policy is commissioning, meaning adapting existing tools to fit new problems (Copeland & Daly, 2015). An illustration of this is the European Semester. Designed in 2010 by the Task Force to the European Council and led by the President of the European Council, Herman Van Rompuy, the aim of the European Semester was to remedy the deficiencies of the Economic and Monetary Union (EMU) and to strengthen the rules enshrined in the Stability and Growth Pact (SGP). It is meant to coordinate member states’ economic and fiscal policies in order to avoid imbalances. Conceived at the inception of the Eurozone crisis in this intergovernmental framework, its origins are disputed. It was said that Luxembourg had the idea of this mode of coordination of macro-economic policies as a means for greater budgetary coordination, and that following 2010 that idea was adopted and championed by Germany as a useful means of promoting its preferred fiscal and budgetary options at the EU level (Interview, civil servant, Council of the EU, Secretariat General, 22 June 2016a). By contrast, officials from the Commission under the leadership of José Manuel Barroso declared that the Semester was the product of a narrow group of commissioners seeking greater compliance with the SGP (Interview, former member of Cabinet under Barroso Commission, 8 February 2016b). In 2011, the Semester emerged as the result of an interactive process between a small group of actors located in the Secretariat General of the Council, the College of commissioners, and the DG ECFIN (Interview, former Commissioner, 8 February 2016c). Regardless of the origin of the idea,

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what matters is that this policy tool was well received at the moment of its creation both within supranational and intergovernmental institutions. Seizing upon this window of opportunity, the Commission, through the voice of its President, proclaimed itself as the only institution endowed with the “political autonomy”, the “technical expertise”, and the vision needed to coordinate the Semester (Document 11/382), while claiming to be the economic government of Europe. With this tool, the aim of the Commission, shared by the German Chancellor Merkel and the European Council, was to “rewrite the rule book” (Speech Barroso 11/10) and to change both attitudes and practices in the EU polity. Political actors in the European Council sought to establish a compliance regime and to increase effectiveness. For this “a wide range of sanctions of both financial and reputational/political nature were meant to be applied” (Task Force Report, 2010, p. 1). Thus, supported by a majority of member states, the Semester emerged as an “authority-based policy instrument” (José Manuel Barroso, Speech 11/7) in order to put pressure on member states (Zeitlin & Vanhercke, 2018) to ensure sound public finance, to prevent excessive macro-economic imbalances, and to support structural reforms (Crespy & Menz, 2015; Schmidt, 2020). The nature of the Semester has changed over time (Schmidt, 2020). Once the flames of the Eurozone crisis died down and the new European Economic governance was established (Schmidt, 2020), the Commission expressed an increasing desire not to be perceived as “breaching national sovereignty” (José Manuel Barroso, Speech 11/724; Document 11/64). The Semester was increasingly presented as a soft process of policy coordination “based on guidance, not on corrections”, as “an informal discussion” between member states and EU institutions before countries deliberated and adopted their national budgets (José Manuel Barroso, Speech 11/29). This process of policy coordination unfolds as follows: the European Commission analyses the situation in each member states and proposes Country-Specific Recommendations (CSRs). The recommendations proposed by the Commission are approved by the Council and endorsed by the European Council. This creates a complex framework, involving a wide range of actors at the national and supranational level, which meet at the expert level, at the level of COREPER, and at the level of ministers in the Council, not to mention the bilateral dialogues of the Commission with each member state. It is important to note that in its 2011 Report, the Task Force to the European Council voluntarily empowered the

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Commission vis-à-vis the Council. For the recommendations of the Commission to be changed, a reverse qualified majority (RQM) vote is required in the Council. We can arguably deduce from this provision that at the time when this voting procedure was introduced, member states were less afraid of the Commission than of the behaviour of the member states themselves. In addition to the RQM, the “comply or explain” rule applies, as stipulated in Article 2-ab(2) of EU Regulation No 1175/2011. According to this: “the Council is expected to, as a rule, follow the recommendations and proposals of the Commission or explain its position publicly”. Constructing Consensus over Justice Reforms in the European Semester Once the Semester launched, member states criticised the Commission’s recommendations for being too intrusive with respect to their domestic policy traditions (Crespy & Menz, 2015), and above all for seeing austerity as the only way out (Schmidt, 2020). Although the idea of policy coordination was well received by member states, the process has given rise to tensions, as the Semester has given the Commission “a tremendous amount of political discretion to make decisions” (Schmidt, 2020, p. 179). One very sensitive aspect was that all national policies—including justice reforms—were dependent on national budgetary discipline and the correction of macroeconomic imbalances (Copeland & Daly, 2015). Thus, the first iterations of the Semester gave rise to a set of “contested questions about the relationship between social and economic policy coordination within the EU’s new, post-crisis governance architecture” (Zeitlin & Vanhercke, 2018, p. 151). Not only do member state try to avoid receiving CSRs that might have an impact on domestic politics (Guidi & Guardiancich, 2018, p. 690), they are also attentive to the content of any recommendations, how prescriptive they are, and whether they might limit domestic actors’ room for manoeuvre. Beyond reputational damage, a failure to implement the CSRs might result in further procedural steps under the relevant EU law and, ultimately, in sanctions under the SGP and the Macroeconomic Imbalance Procedure, such as fines and/or suspension of European Funds (European Parliament, PE 528.767, p.  1). However, no sanctions have been yet imposed on any member state. Both in the Justice Scoreboard and in the European Semester, the Commission has linked the objective of economic growth to the

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performance of national justice systems, with the aim of supporting the single market. From this perspective, the approach embraces an economic dimension, as ineffective justice systems can affect not only the market but also the EU (EU Justice Scoreboard 2013, COM(2013) 160 final, p. 3). Thus, the role of national courts is emphasised as being essential in enforcing EU legislation. Economisation here refers to the inclusion of justice reforms in a framework devoted to economic, budgetary, and fiscal aims. Although the focus is on the importance of courts to support the market, one should note that the economisation of the approach is balanced by the need—underlined by the Commission—for effective judicial protection. Justice systems were already at the heart of the European Semester in 2011. In some cases, the Commission pointed out structural problems concerning the efficiency and the independence of the judiciary; in others, it indicated some “operational” aspects related to the management of the judiciary. Since 2011, 14 member states (from Central, Eastern and Southern Europe and, once, Ireland) have received at least one CSR related to their justice systems (Table 4.2). Fourteen others (mainly old EU member states, plus Estonia, Lithuania, and Czechia) have not been subject to any reforms or recommendations. Drawing on the Justice Scoreboard, in 2012, the Commission noticed problems concerning the organisation of the judiciary and the length of judicial proceedings in six member states: four from the 2004 entrants (Bulgaria, Poland, Slovenia, and Slovakia) and two old member states (Italy and Luxembourg). Over time, the number of member states receiving CSRs concerning their justice systems increased. Looking at the 45 recommendations addressed to the 14 member states since 2011, it appears that in most cases, the Commission tend to focus its CSRs on the Table 4.2  European Semester: member states with CSRs concerning their justice systems Member states with recommendations related to their justice systems

Member states without recommendations

Old: Ireland, Spain, Italy, Portugal (+ Greece)

Old: Belgium, Denmark, France, Germany, Luxembourg, Austria, Netherlands, Finland, Sweden, UK New: Czechia, Estonia, Lithuania

New: Bulgaria, Croatia, Cyprus, Latvia, Hungary, Malta, Poland, Romania, Slovenia, Slovakia

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9 8 7 6 5 4 3 2 1 0

Italy Slovakia Croa a Poland Bulgaria Cyprus Latvia Portugal Slovenia Hungary Malta Spain Romania Ireland Czech Republic Denmark Germany Estonia Greece France Lithuania Luxembourg Netherlands Austria Finland Sweden United Kingdom Belgium

quality and efficiency of justice system, while the more sensitive issue—the independence—has been a matter of concern in Romania and Bulgaria (under the CVM), Malta, and Slovakia. As in the enlargement process, the recommendations related to the functioning of the justice system are rather general, pointing out what should be improved, but not how to do so. The most common CSR put forth by the Commission is to improve the quality and efficiency of the judicial system, yet without providing concrete prescriptions. In terms of CSRs in the field of justice, Italy is the country which has received the most since 2011, followed by Slovakia, Croatia, Poland, Bulgaria, Cyprus, Latvia, Portugal, Slovenia, Hungary, Malta, Spain, Romania, and Ireland (Fig. 4.1). This background is important in order to understand the member states’ coalitions over the rule of law that are discussed in Chaps. 6 and 7. The absence of recommendations, however, does not mean that there are no problems in a country. Not only did member states try to avoid any recommendations (CSRs) and associated reputational damage, over time the Commission also aimed to reduce their number and, by the same token, “to be more receptive to member states’ concerns” (Interview, Sec Gen Council, 22 June 2016d). Jean-Claude Juncker thought the Semester was over complicated and in need of simplification to make it “more

Fig. 4.1  Member states which have received CSRs as part of the European Semester. (Source: Author’s own compilation, based on data provided in the EU Justice Scoreboard and CSRs since 2011)

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visible” and “easier for leaders” (Agence Europe, 4/02/2015). In this regard, as an illustration of the political Commission, Juncker introduced more flexibility (Schmidt, 2020) so the Semester would be “less reliant on the expertise of the DGs” while also emphasising the “political view on how things fit together” (Interview, SecGen of the Council, 22 June 2016d). Once both member states and the Commission agreed to reduce the number of CSRs per country, another facet of the more political use of power by the Commission was its decision on what should be the emphasis of its policy. Some choices had to be made, and here justice reforms are a good illustration of the political Commission. Thus, some member states received recommendations (Fig. 4.1), while in other cases, the Commission just mentioned the challenges of the justice systems in the recital of the recommendation (Fig. 4.2), as in the case of Spain and Portugal, but also in Belgium (where “shortcomings” in the justice system were mentioned in the recital of the recommendations in 2016) and Ireland. There is some nuance here, however, also underlined by Efstathiou and Wolff (No. 2018/092018). We can see a significant difference between how the state of reforms is described by the Commission in the recital (often very 4.5 4 3.5 3 2.5 2 1.5 1 0

Spain Romania Belgium Bulgaria Ireland Latvia Malta Hungary Poland Portugal Greece Cyprus Slovenia Slovakia Czech Republic Denmark Germany Estonia France Croa„a Italy Lithuania Luxembourg Netherlands Austria Finland Sweden United Kingdom

0.5

Fig. 4.2  Member states for whom challenges related to their justice systems were mentioned in the Recitals of the CSRs as part of the European Semester. (Source: Author’s own compilation, based on the CSRs issued by the Commission for each member state since 2011)

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critical) and the CSRs provided than in general avoid using excessively harsh language (Efstathiou & Wolff, 2018). Member states seek to avoid or to change the proposed CSRs by the Commission, either in bilateral discussions or in multilateral deliberations in expert committees, at the COREPER and at the ministerial level in the Council. States aim to circumvent overly prescriptive reforms in areas at the core of national sovereignty. What member states seek to change is “the language in which the Commission frames its reporting” and the CSRs (Interview, DG EMPL, 26 February 2016e), to avoid reputational costs and limit the effects of blaming and shaming at the European and domestic levels (Interview, PermRep Portugal, 30 August 2017a). According to interviews, this process was challenging for Spain and Portugal, as well as for Italy, whose justice system was portrayed in dark colours in the evaluations of the Commission. Overall, according to a survey conducted by the European Court of Auditors among a group of national officials involved in the Economic Policy Committee (a body which supports the work of ECOFIN), member states tended to agree with the assessments of the Commission: results showed that 89.5% of respondents agreed that the Commission’s assessment was completely or generally accurate (European Court of Auditors, 2018, quoted by Efstathiou & Wolff, 2018). An Instance of Dissensus: The Political Use of the Semester to Safeguard the Rule of Law in Poland Discussions about justice reforms have been rather consensual in the Semester. Framing justice reforms in terms of efficiency and quality limit the potential for contestation (Vigour, 2007, p. 61). Yet when the question of independence arises, there is greater potential for tensions. As an illustration, in 2017, after an unsuccessful dialogue with Poland as part of the Rule of Law Framework (see next section), the Commission included a reference to the rule of law in the Country Report, and not just the usual reference to the justice systems (European Commission, 2017a, 90 final). The Commission underlined the importance of the rule of law and an independent judiciary for legal certainty, trust in the quality and predictability of regulatory, tax and other policies that could allow an increase in the investment rate, emphasising the fact that “a systemic threat to the rule of law creates legal uncertainty” (European Commission, 2017a, 90 final, p. 2). The expression “rule of law” was even underlined on

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page 27 in the Country report (European Commmission, 2017a, 90 final, p. 2). Assessing the situation in Poland, the Commission concluded that the ongoing “crisis undermines trust in the Polish legal system” (European Commission, 2017a, 90 final, p. 35; European Commission 2017b). This assessment in the country report was contested by the Polish representatives who argued that the rule of law was not a matter to be discussed in the framework of the Semester. The issue was first debated in the Economic Policy Committee, among national experts who felt uncomfortable with this “political issue”, as a diplomat from the Permanent Representation of Poland declared in an interview (Interview, PermRep of Poland, 4 September 2017b). The issue was then addressed at the level of COREPER, as explained by a German diplomat (Interview, PermRep of Germany, 5 September 2017c). Polish representatives sought to have the reference to the rule of law removed. Yet interviewees declared that after discussions in COREPER, the text proposed by the Commission was left unchanged as Poland did not manage to gather sufficient political support from other member states and was not able to bring the issue up to the Council level. The Commission maintained its reference to the rule of law in the recital (14) of the recommendation on the 2017 National Reform Program of Poland (Com(2017), 520 final, p. 5), stating that “the current systemic threat to the rule of law creates legal uncertainty”. This was a strong assessment which was corroborated with the evaluation that the Commission was undertaking as part of the Rule of Law Framework (RLF), discussed in the next section. In contrast, the Polish diplomat interviewed for this book presented a different narrative, arguing on the contrary that Poland did manage to gather the support of other member states to change the framing of the assessment, but that in the end, the Commission rejected the modification that had been approved by the EPC (Interview, PermRep of Poland, 4 September 2017b). Discussing the “rule of law episode” in the Semester, the same Polish diplomat stated at that time: [T]he European Semester processes so much in the hands of the Commission. (…) The Commission is very, very much unwilling to change anything in the country-specific recommendations.

The Semester was suspended in the context of COVID-19, when the von der Leyen Commission and the ECOFIN Council agreed to adopt a more flexible and pragmatic approach (Agence Europe, 14/03/2020). Yet, even before this moment, the level of implementation of CSRs was

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low and even “worsened” over time (Efstathiou & Wolff, 2018, p. 2) leading to doubts about the efficacy of the process. If the aim was to increase compliance, as the Report of the Task Force to the European Council underlined in 2011, this ambition did not materialise. Explaining the lack of progress, a French diplomat from the Permanent Representation in Brussels argued that “the process is more important than the outcome” (Interview, PermRep of France, 6 September 2017d).

4.4   Strengthening the Commission’s Procedural Authority: The Rule of Law Framework The Rule of Law Framework (RLF) was established before the end of José Manuel Barroso’s mandate and prior to the EU elections as an additional instrument that, together with infringement procedures (Pohjankoski, 2021) and Article 7 TEU, would address “systemic threats to the rule of law” (COM(2014) 158 final). The Commission held two orientation debates on the rule of law, on 28 August 2013 and on 25 February 2014, concluding that there was a need to develop such a tool (Press Release, 11/03/2014). Contested Legality “New tool, new challenges”, one might say, considering that the RLF was of a different kind than the previous ones. Here the Commission was addressing the very sensitive issue, namely how member states respect the values referred to in Article 2 TEU (Crabit & Bel, 2019, p. 203). Calling a member state to account for an alleged violation of Article 2 TEU was bound to be a highly political act (Dinan, 2017, p. 79).Yet by creating this framework, the Commission arguably sought to assess and formalise its procedural authority vis-à-vis member states. As Beetham puts it, pressures to formalise procedures arise from the need to resolve disputes about power (Beetham, 1991). Although the Commission underlined the fact that “the new framework does not constitute or claim new competencies for the Commission but makes transparent how it exercises its role under the Treaties” (Press Release, 11/03/2014), in 2014, the Council Legal Service received the Communication of the Commission on a New Framework to Strengthen the Rule of Law with considerable scepticism.

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Two months after the publication of this Communication, the Council Legal Service delivered an opinion (Council of the EU, 2014, 10,296/14) stating that it would be unlawful for the Commission to pursue this course of action (Oliver & Stefanelli, 2016, p. 1076). The Service reminded that “according to Article 5 TEU, the limits of the Union competence are governed by the principle of conferral” and that “competences not conferred upon the EU in the Treaties remain with the Member States” (Council of the EU, 2014, 10,296/14, p.  4). According to the CLS, Article 2 TEU does not confer material competence on the EU, implying that “a violation of the values of the Union, including the rule of law, may be invoked against a Member State only when it acts in a subject matter for which the Union has competence based on specific competence-­setting Treaty provisions” (p. 5). From this perspective, stated the CSL, Article 7 TEU is the only provision that empowers the Union to take action against a member state with respect to breaches of Article 2 and covering matters which otherwise fall outside the scope of the EU treaties (Council of the EU, 2014, para. 17). From the CLS’s perspective, there was no need to establish new tools either to amend, modify, or supplement the procedure, considering that “Article 7 deliberately establishes a precise supervision framework with different phases” (Council of the EU, 2014, para. 18). More explicitly, in paragraph 24, the opinion concluded that there is no legal basis in the Treaties empowering the Commission to create a new supervisory mechanism for the respect of the rule of law in addition to what is already laid down in Article 7 TEU (p. 7). An alternative solution was proposed: that member states agree on “a review system” which may allow for the participation of the Commission. This sort of a peer review “could find its legal basis in an intergovernmental agreement designed to supplement the law and to ensure effective respect of the values […] without by doing so conferring on the Union competences whose transfer the Treaties have not foreseen” (para 27, p. 7). Last but not least, the CLS also deplored the lack of clarity in the understanding of the rule of law, and that, following the enlargement approach, the Commission chose to connect rule of law to judicial independence (Vauchez, 2020, p.  19). As Kochenov and Pech put it, the Council seemed to be more “interested in discussing the limits of the Commission’s powers rather than addressing potential or actual systemic breaches of EU values amongst its members” (2016, p. 1072). Yet when the Commission proposed the establishment of the RLF in 2014, the idea was well received by a number of member states including

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Italy, Croatia, Belgium, Spain, Portugal, Sweden, Ireland, and Poland under the government led by the Civic Platform (PO). Denmark  even proposed that the Council adopt conclusions to make member states at least express stronger support vis-à-vis the establishment of an EU Rule of Law Framework. But formalising a conclusion on such a sensitive issue was not possible. Even member states which were quite in favour of the RLF formulated some conditions: France insisted on the legitimacy of the RLF; Romania, Slovakia, Cyprus, Luxembourg, Slovenia, Ireland, Spain, Portugal, and Malta insisted on procedural aspect and non-discrimination in its use. Criticism came from the UK and Hungary who pointed out both political and legal considerations. Lithuania was of the opinion that on such matters, decisions should not be reached hastily. Governments’ appetite for innovation in terms of policy tools was rather limited. In the end, the Council concluded that the dialogue must be conducted in such a way as to complement the work of other EU institutions (Council, 16,936/14, December 2014). The Formalisation of the Pre-Article 7 TEU Procedure Despite initial resistance, the Framework was meant to allow the Commission to find a solution with any member state concerned in order to prevent systematic threats to the rule of law that risk evolving into a persistent, serious breach which would then potentially trigger the procedure set out in Article 7 TEU. The RLF institutionalises a process whose rules are explicitly laid down in the 2014 communication of the Commission (COM(2014), 0158 final). As Vauchez pointed out, the Framework considerably empowers the European Commission vis-à-vis Article 7 TEU, by connecting the rule of law to the notion of independence (2020, p. 19). First, the Commission proposed a definition of the rule of law, which brings together a series of principles, including “legality, which implies a transparent, accountable, democratic and, pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law” (COM(2014), 0158 final, p.  4), and draws since then on the evolving case law of the Court of Justice of the EU for greater legitimacy (see Chap. 7). Second, the RLF is designed to deal with threats to the rule of law which are of a systemic nature, rather than individual breaches of said

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values, implying that the framework would be activated by the Commission only when national rule of law safeguards do not seem capable of effectively addressing those threats. As stated by the Commission, “Threats to the rule of law” of a systemic nature are defined as instances when the political, institutional and/or legal order of a Member State as such, its constitutional structure, separation of powers, the independence or impartiality of the judiciary, or its system of judicial review including constitutional justice where it exists, must be threatened—for example, as a result of the adoption of new measures or of widespread practices of public authorities and the lack of domestic redress. (COM(2014), 0158 final, p. 4)

Third, the RLF establishes a dialogue between the Commission and the member state concerned, organised in three stages: assessment, recommendation, and follow-up to the recommendation, with the Commission deciding when conditions have been met to move from one stage to the next. Each stage of the process places the Commission at the centre of the procedure. Ultimately, it institutionalises the Commission’s collaboration with the Council of Europe and with two of its main bodies: the European Commission for Democracy Through Law (the Venice Commission), and the European Commission for the Efficiency of Justice (CEPEJ). Although the RLF empowers the European Commission in its political and administrative role, like the EU Justice Scoreboard for monitoring and opinions for assessment, for normative and expert assessment, the Framework still relies on data delivered by the CEPEJ and the Venice Commission of the CoE. Finally, if the dialogue does not translate into change in the member state concerned, the Commission might consider triggering Article 7 TEU. The imperfections of the RLF have been underlined by Kochenov and Pech who criticised “the absence of any clarity on how the Commission understands systemic breach” (2016, p.1070). In their view, the Framework gives the institution “the absolute discretion” to decide when to activate this instrument or to move from one phase of the Framework to the next (Kochenov & Pech, 2016, p. 1070). Overall, this tool was seen as “a modest step in the right direction” (2016 p. 1066), despite its soft nature. The instrument drew heavily on the power of dialogue and persuasion between the Commission and the member state concerned, which,

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scholars argued, was inadequate for situations when member states turn democratic regimes into autocracies. The Rule of Law Framework  is designed for “normal times” not for situations that require urgent action, where there is a risk of an autocratic regime consolidating its position in the heart of the EU (Kelemen,  2020). The framework, legal scholars anticipated, leaves national leaders enough time to pursue the dismantlement of a state’s democratic regime. Yet if it was “too little, too late” by some, the framework was “too much” for representatives of the Polish government and representatives in the EP. MEP Ryszard Legutko (ECR group) argued that “the framework is very obscure […] What we have here is a kind of political, judicial prerogative given to the European Commission to act as a super-body to intervene in particular pieces of legislation in member states. I don’t see why non-elected people can intervene in the process of law-making in these countries” (Politico, 22/01/2016). In the Middle of Dissensus: The Commission’s Dialogue with Poland or the Meeting of Law, Politics, and Technocracy Following the first measured adopted by the PiS government in Poland in November 2015 concerning the nomination of judges and the composition of the Constitutional Tribunal (Sadurski, 2019) and the shortening of the mandate of its president and vice-president—and after the judgements of the Polish Constitutional Tribunal over the nomination of judges published on 3 and 9 December 2015—the Polish Sejm adopted a new law on the Constitutional Tribunal on 22 December 2015, concerning the Tribunal’s functioning and the independence of judges (Commission Recommendation of 27/07/2016). The Commission expected that this law would not be adopted and that the Polish authorities would work with the Venice Commission of the Council of Europe. But the Polish government adopted the law which entered into force on 28 December 2015, and on 11 January 2016, the PiS government sent a response to the Commission which did not dissipate the latter’s concerns. Without delay, on 13 January 2016, the Commission launched the Rule of Law Framework with Poland (Kochenov & Pech, 2016), leading observers to be intrigued as to why this did not also happen in the case of Hungary. This was already seen as a political decision on what the Commission had presented as a technical and legal matter. The Commission may initiate infringement proceedings or “enforcement actions” against

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member states for non-compliance with EU law (Pohjankoski, 2021), but it is under no obligation to do so, and its discretion in this regard is absolute (Stone Sweet, 2004, p. 57). The accelerated infringement procedure was privileged in the case of Hungary to safeguard not only the independence of the Central Bank but also judicial independence in the case Commission v. Hungary (C-286/12, 6 Nov. 2012) and later against the Polish government (C-192/18, Commission v. Poland, 5 Nov. 2019) (Vauchez, 2020). Yet some authors pointed out the limited scope of infringements, as they focus on a single law, missing the bigger picture (Pohjankoski, 2021). In the case of Hungary, the Commission argued that the conditions were not met to use other tools, although this approach was criticised by the left and the green groups in the EP (Chap. 5). Another reason that perhaps explains why the Commission did not launch the newly established RLF with Hungary was that “the constitutional revolution” was “over”, and the “consolidation of Orbán’s power complete” (Kochenov & Pech, 2016, p. 1069). In Poland, in October 2015, the PiS government was only about to begin what became a comprehensive process of change in the judicial system, leading to the paralysis of the Constitutional Tribunal at the end of 2015 and limiting the independence of the judiciary. In response, in its first exchanges with the Commission, the Polish PiS government invoked the constitutional custom in explaining the direction of the adopted laws in the field of justice. The RLF was one process with many interlocutors and many facets, although it involved only two parties, namely, the Commission and the Polish government, represented by its prime minister and/or minister of justice. For the Commission, the dialogue was led by Frans Timmermans, vice-president in charge of the matter, and it was also not obvious where to find political support in the Commission. Frans Timmermans and representatives of the Polish authorities—including, at different moments, the prime minister, deputy prime minister, minister for foreign affairs, president and vice-president of the Constitutional Tribunal, Ombudsman, and many other actors—met several times in Brussels and in Warsaw. The Commission and the Council of Europe sought to facilitate the discussion. Like Frank Timmermans, Thorbjørn Jagland, the president of the Council of Europe, also travelled to Poland several times. Likewise, Nils Muiznieks, Commissioner for Human Rights of the Council of Europe, expressed his concern over the erosion of the rule of law in Poland. Yet the Polish government’s answers to the Commission’s queries were often slow to come.

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The topic was often on the agenda of the College of the commissioners, which was at times united, at times divided, albeit “mostly pro-Warsaw” as reported in the media of the record by EU officials and diplomats (Politico, 6/06/2018). Within the Commission, Jean-Claude Juncker and his Chief of Staff, Martin Selmayr, were reluctant at the idea of seeing the RLF give rise to Article 7  TEU, while Timmermans was more in favour of it (Politico, 6/06/2018). Jean-Claude Juncker hoped to find a compromise with the Polish PiS government, keeping the channels for discussion “permanently open”, and yearning to see the Polish position evolve “a bit closer” to that of the Commission, and to see the Commission “slowly shifting towards the Polish position” (EurActiv, 20/02/2018). Despite growing dissensus, the Commission attempted to reach consensus, arguing in discourse that it was acting “above and beyond politics, in a purely technocratic way” (Dinan, 2017, p. 79). Gaining support in the Council was another facet of this complex dialogue. Not only did Frans Timmermans seek to reach a consensus with the Polish authorities over the disputed changes in this episode but the vice-­ president of the Commission also actively sought to put the question of the rule of law on the agenda of the Council (Chap. 6) and to find support for its action in the Council and in the European Council (Closa, 2019, p. 700). In January 2016, when the European Commission initiated its dialogue with Poland as part of the RLF, the Dutch Presidency of the Council did not deem it necessary to add the situation in Poland to its agenda (Agence Europe, 14/01/2016). This time around, the idea of launching the RLF was not well received by the president of the European Council, Donald Tusk, who called for an end to the “hysteria over rule of law” (Agence Europe, 19/01/2016). As Closa explains (2019, p. 707), the vice-president of the Commission “engineered a strategy for encouraging Council support”, repeatedly asking the member states holding the rotating presidency to include the point on the agenda (Chap. 6). The process was slow. As an illustration, in the General Affairs Council in May 2017, 23 member states agreed that the Commission should continue to dialogue with Poland, although the dialogue did not give any result, as deplored by Vice-President Timmermans. Despite this, in September 2017, no member states supported the idea of triggering Article 7 TEU, while in 2016, the EP voted on two Resolutions on the situation in Poland (Chap. 5). The dialogue lasted for two years, during which time the vice-president of the Commission was at times “confident” and at other times “worried”

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about the institutional changes in the country and regularly put this point on the agenda of the weekly meetings of the College of Commissioners (Agence Europe, 24/05/2016). After moments of “silence” and being slow to respond to the Commission, the Polish PiS government insisted that the concerns expressed by the institutions of the EU and of the Council of Europe were “baseless” as the measures taken in Poland were in line with European norms and respond to a social demand (Agence Europe, 30/08/2017). On many occasions, the Polish government declared that it had offered “sufficient concessions to the EU and will not back down further” (Politico, 6/06/2018). Both in terms of discourse and in terms of action, the PiS stuck to its position. Reactions were highly polarised in Poland, and Polish political actors voiced dissensus on many occasions. The leader of the PiS party, Jaroslaw Kaczynski, repeatedly insisted on the sovereignty of his country vis-à-vis “Brussels”. Over the course of two years, more than 25 letters were exchanged between the European Commission and members of the Polish PiS government. Without speculating too much, from reports in the media and reading between the lines, from the Commission’s viewpoint, a sign from the Polish government expressing its willingness to comply would have been enough in 2017 to avoid triggering Article 7 TEU, and President Juncker met the Polish Prime Minister to discuss this. Around this time, Frans Timmermans argued that activating Article 7 TEU would not solve problems (Agence Europe, 24/03/2017). But the recommendations issued by the Commission were seen as “too political” by the Polish authorities who argued that national sovereignty was in conflict with the idea of Europe, as underlined on many occasions by the Polish Prime Minister Mateusz Morawiecki. In December 2017, the Commission triggered Article 7 TEU, with the public support of Angela Merkel and Emmanuel Macron (Closa, 2019, p. 707), concluding that the 13 laws adopted by the Polish government since it came to power in 2015 were a threat to judicial independence and exposed the existence of a clear threat of serious breach of the rule of law in that country. According to the Commission’s motivated proposal (COM(2017)835 final), its concerns were related to: the lack of an independent and legitimate constitutional review; the legislation relating to judicial independence; the law amending the law on the Ordinary Courts Organisation in force since 12 August 2017; the law amending the law on the National Council for the Judiciary approved by the Senate on 15 December 2017; and the law modifying the organisation of the National

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School of Judiciary and Public Prosecution, in force since 20 June 2017. In its reasoned proposal (16,007/17) which contains a detailed explanatory memorandum, the Commission made a proposal for a Council decision under which the Council would (1) “determine that there is a clear risk of a serious breach by Poland of the rule of law and (2) make recommendations for Poland to bring its judicial reform into line with rule of law standards” (Council of the Union, 9997/18). After this, the topic was put on the agenda of the Council, which, under Article 7 TEU procedure, has organised hearings with Poland and Hungary (Chap. 6). In addition to this tools, since 2020, the von der Leyen Commission has published an annual Rule of Law Report (RLR), under the supervision of Commissioner Didier Reynders. This new tool is meant to complement the EU Justice Scoreboard, the European Semester, and the recent Next-­ Generation EU framework as well as the Commission’s assessment capacity. Like all the other tools, the report is designed “to prevent problems from emerging or deepening” (COM(2020) 580 final, p. 3) and create “a rule of law culture”, covering issues related to justice system, anti-­ corruption framework, media pluralism and freedom, and other institutional issues linked to checks and balances. But even this tool has been contested. While the first edition of the report was well received by a wide range of member states, including those where the Commission identified problems such as Italy or Bulgaria (EurAactiv, 1/10/2020), the report was strongly contested by the Governments of Poland and Hungary. The Polish Justice Minister Zbigniew Ziobro and the Hungarian Minister Judit Varga issued a joint statement on 30 September 2020, contending that the Rule of Law Annual Report “cannot serve as a basis for the discussions on the rule of law in the EU”. In their view, “the scope of the report is arbitrary and there are no references to objectively selected reference points, which could be applied equally to all member states” (EurActiv, 1/10/2020).

4.5   Conclusions Confronted with comprehensive changes in the justice systems of Hungary and Poland, the Commission chose to establish a series of new soft tools. When its legitimacy has been contested, the institution has sought to assess its expert (through the EU Justice Scoreboard), agenda setting (European Semester), and procedural powers (Rule of Law Framework). Each tool has been unevenly contested, and the most disputed one on

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grounds of legality is the RLF. While these tools have completed the EU’s rule of law policy, in practice, they have given little result. The Semester has been suspended during the COVID-19 pandemic, the RLF did not allow to reach consensus but led to the triggering Article 7 TEU. Only the Scoreboard has been iterated every year, as well as the Rule of Law Annual Report since its first publication in 2020, displaying trends related to the efficiency, independence, and quality of the justice systems in a majority of EU member states. The chapter shows that although each tool tackles the issues at stake from a different perspective, they contribute together to the establishment of a wider soft monitoring regime. Said tools have a dual purpose: designed to douse the flames of the rule of law crisis, they seek, by the same token, to consolidate the Commission’s autonomy and authority vis-à-vis member states through dialogue, peer pressure, and persuasion. Designed in response to growing dissensus over the rule of law, often contested, these tools constitute the core of an institutional framework which places the Commission at its centre. Chapter 7 shows how this comprehensive monitoring regime discussed here is increasingly anchored in the EU polity and marks a shift from soft to hard tools and more integration.

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CHAPTER 5

The European Parliament: How Coalition Formation and Internal Group Dynamics Shape EU’s Rule of Law Policy?

5.1   Introduction Until the beginning of 2010, with some exceptions, most debates about the rule of law were related to enlargement, the European Neighbourhood Policy or the state of democracy and fundamental rights in the world. There was rarely discussion of the situation in member states, except, perhaps, regarding political developments in Austria at the end of the 1990s (Chap. 3) and in Italy, though not with the same intensity and implications. Since the 2010s, developments in EU member states have led to fundamental debates about democracy, the rule of law, and fundamental rights within 8 out of the 12 “new” member states which joined the EU in 2004 and 2007 (i.e., all except the three Baltic States and Cyprus). As illustrated in Fig.  5.1, rule of law topics were rather sporadically addressed in the seventh term of the EP (2009–2014), mainly in relation to Romania, Bulgaria, and Hungary. Such discussions then intensified during the eight term (2014–2019), when MEPs (Members of the European Parliament) not only continued to monitor the situation in Hungary and in Romania but had devoted considerable attention to developments in Poland and in Malta, triggering Article 7 TEU against Hungary in 2018 and urging the Commission to use existing rule of law policy tools (either the Rule of Law Framework or Article 7 TEU) to ensure that member states comply with the values referred to in Article 2 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_5

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8 6 4 2 0

2010

2011

2012

Spain

2013

2014

2015

2016

2017

Bulgaria

2018

2019

2020

2021

Poland

Hungary

Czech Rep

Romania

Malta

Poland/Hungary/Slovenia

Malta/Slovakia

Fig. 5.1  The evolution of debates in the EP on the situation in member states since 2010

TEU. During the ninth term (2019–2024), MEPs have raised concerns regarding the situation in Hungary and Poland, Malta, and Romania, as well as in Czechia, Bulgaria, and sporadically Slovenia. How has the EP sought to shape the EU’s rule of law policy tools? What have been the main motivations/preferences of its political groups in dealing with democracy, the rule of law, and fundamental rights concerns at the EU level? And, ultimately, what is the nature of the rule of law architecture that the EP is promoting? This chapter shows that the institution has been rather pro-active in shaping rule of law policy. Resolutions, reports, and recommendations represent the most frequent legislative and non-legislative activities of the EP (Braghiroli, 2015, p. 99). Through its resolutions, the EP has sought to expose the nature of the rule of law concerns in member states and to recommend what action be taken not only by national governments but also by the Commission, the Council, and even the European Council. The parliament has sought to hold the Commission and the Council to account by seeking to present a “viable alternative” (Sargentini & Dimitrovs, 2016, p.  1085) to their inaction (see Chap. 6). The EP’s numerous resolutions condemning the erosion of democracy, the rule of law, and fundamental rights in EU member states and recommending, in some cases, the triggering of Article 7 TEU or the activation of the RLF (Chap. 4), as well as its proposals for the establishment of a new EU Mechanism on democracy, the rule of law, and fundamental rights, all stemmed from heightened conflicts: they are a reflection of EP’s power

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dynamics and of the consensus/dissensus over how to safeguard the rule of law. The chapter shows that in the EP, dissensus and contestation are rooted in partisanship, ideology, and strategic interests as well as in different views on democracy, the rule of law, and fundamental rights in the EU. On the one hand, radical right-wing groups and some Christian democrats tend to express dissensus and reject the reconfiguration of the rule of law at the supranational level; the rule of law—understood in terms of legality—is for them anchored at the national level, with the people and national institutions giving meaning to its substance, consent, and control. In contrast, the radical left, the Greens/ALE, the liberals, and the S&D tend to express contestation about how to reconfigure the rule of law at the supranational level; they regard the rule of law as being anchored in the EU as a community of law (legality), in the name of European citizens (consent) whose fundamental rights (substance) need to be protected through supranational means (control), albeit with some difference regarding their support for more or less integration. Such views on the rule of law shape not only the outcomes of resolutions but also the EP’s preferences in terms of rule of law policy at the EU level. Drawing on parliamentary debates, votes, reports, and legislative acts starting from the EP’s seventh term (2009–2014) onwards, the chapter is structured as follows: Sect. 5.2 discusses the determinants of MEP’s behaviour. Section 5.3 empirically illustrates the coalition patterns and the internal dynamics of political group in the adoption of resolutions on the domestic situations in Hungary, Bulgaria, Romania, Poland, Malta, and Czechia. Section 5.4 focuses on the EP’s report on the establishment of an EU Mechanism on democracy, the rule of law, and fundamental rights and its main characteristics.

5.2   Consensus, Contestation, and Dissensus. Explaining Legislative Politics Through MEPs Behaviour Scholars of legislative politics have explained outcomes in the EP by putting forward three main lines of conflict: ideology, support for EU integration (Hix & Noury, 2009; Cheysson & Fraccaroli, 2019), and, more recently, partisanship (Herman et al., 2021). They are used here to shed light on the consensus/dissensus nexus over the rule of law.

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The left/right dimension has been the dominant line of conflict in the EP, considering that the institution takes decisions primarily on socio-­ economic issues (Hix, 2001). Yet scholars have argued that the decision-­ making system of the EU and the majorities required to pass legislative acts lead to “ideological moderation” (Kreppel, 2000, p. 346), and this allows the EP to act strategically and to present itself as a unified opposition to the Council and the Commission. The work of the EP is based on consensus and compromises determined by the need to deal with the Commission and the Council in the ordinary legislative procedure (Ripoll Servent, 2019, p.  333). This pragmatic interest of the EP to weigh in on the EU decision-making process has historically led its two main groups—the European People’s Party (EPP) and the Socialists and Democrats (S&D)—to form “grand coalitions” (Kreppel, 2000; Hix & Hoyland, 2011). The second line of conflict is the pro-anti EU dimension. Scholars have argued that this has been less important in shaping outcomes in the EP since the idea of “more” or “less” integration relates to the power relations between the EU and the member states which historically have been negotiated between governments in the Council, not within the EP (Otjes & van der Veer, 2016, p.  243). In recent years, however, this issue has become a second line of conflict in the EP too (Otjes & van der Veer, 2016). From this perspective, the opposition between actors influence the nature and speed of the European integration process, that is, being more or less inclined to support EU institutional reforms and delegation of competence at the EU level (Garrett & Tsebelis, 1996). This conflict also mirrors a division which pits national sovereignty against supranational integration, national identity against supranational identity, and the rights of citizens at the national level against citizens’ rights at the supranational level, or, what Hooghe et al. (2002) termed a cultural cleavage opposing Green-Alternative-Libertarian (GAL) to Traditional-Authoritarian-­ Nationalist (TAN). The question of whether MEPs support European rather than national party interests also plays a role in shaping outcomes, that is, through partisanship (Braghiroli, 2015). As Hix put it, “if an issue is highly salient for a domestic party and an MEP is torn between the position of their party and their domestic party leadership, the MEP is likely to vote with their national party and against their EP group” (2001, p. 666). In other words, “which national party an MEP is from is a significant factor of how MEPs vote” (Hix, 2001, p. 677). Conversely, groups also tend to support their

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party members in national government (or not) to avoid losses in terms of membership (Herman et al., 2021, p. 177). This also reflects the positions of parties towards a national opposition vs. government divide (Meijers & Van Der Veer, 2019, p. 842). Against this backdrop, the chapter shows that dissensus and contestation over the rule of law can be explained by the following: 1. Partisanship, which tended to play a determinant (yet variable) role in voting resolutions pertaining to democratic backsliding and rule of law in Hungary, Poland, Romania, Malta, Bulgaria, or Czechia, with some political groups being more reluctant than others to criticise their members and to call on the Commission to trigger Article 7 TEU or the RLF.  MEPs from European party groups affiliated with the governing party in the country in question are less likely to raise the issue of democratic backsliding than MEPs from (other) mainstream party groups (Meijers & Van Der Veer, 2019, p. 843). As Kelemen put it, the EPP has shielded Orbán because his party delivered them seats in the EP and served as an ally of EPP governments in the Council. As the chapter shows, other political groups have tended to shield members from the parties whose action at the domestic level undermines democracy, generally remaining silent and supporting each other in the EP (Meijers & Van Der Veer, 2019), while others detached themselves from their members without much hesitation. 2. “More” or “less” integration, which seems to prevail in shaping the EP’s report on the establishment of a mechanism on democracy, the rule of law, and fundamental rights. This line of conflict in the EP now resembles the one in the Council when debates concern questions of competence in the EU polity (Otjes & van der Veer, 2016, p. 257). 3. The East-West divide. As Herman et al. (2021, p. 178) argued, EPP MEPs who are members of Visegrad national parties are less likely to vote in favour of resolutions than EPP MEPs from other national parties as an illustration of. This can be applied to all the other groups. Yet, as the chapter shows, in the EP, this division line is neither a stable pattern nor a determinant factor able, alone, to shape outcomes or coalitions.

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The chapter shows that there are no permanent coalitions in the EP (Hix & Hoyland, 2011, p. 59). In the rule of law debate, coalition patterns have changed over time depending on the issues at stake. Outcomes in the EP have been marked by increased dissensus and contestation fuelled variably by partisanship, ideology, and attitudes towards integration. On the one hand, dissensus and contestation prevailed when • a full right coalition (Ripoll Servent, 2019, p. 336)—which corresponds to the EPP’s strategic and ideational coalition with the “untidy” right—supported the Hungarian Fidesz (blocking demands in favour of triggering Article 7 TEU) and the Bulgarian GERB • a liberal full left coalition (S&D, Alliance of Democrats and Liberals in Europe (ALDE)/Renew, European United Left/Nordic Green Left (GUE/NGL), Greens/ALE) opposed to a full right coalition (EPP, Europe of Freedom and Direct Democracy (EFDD), ECR, ENF, NA) in the debates on the situation in Romania and Malta. Dissensus and contestation diminished when • a grand coalition of the EPP and S&D with the Greens/ALE, the Liberals (Renew Europe) and the Radical Left (GUE/NGL) opposed the European Conservative and Reformists (ECR), the ENF, EFDD, and NA in debates about the situation in Poland; as well as • a grand coalition of the EPP and S&D with the Greens/ALE, the Liberals (Renew Europe), and the Radical Left (GUE/NGL) opposed to the European Conservative and Reformists (ECR), the ENF, EFDD, and NA in debates about the situation in Poland and in the adoption of the report for the establishment of a more comprehensive mechanism on democracy, the rule of law, and fundamental rights. Ultimately, changes in the coalition dynamics allows also to go beyond dissensus over the rule of law and to reach consensus not only on its thin understandings but also with regard to its substance.

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5.3   Coalition Patterns of Dissensus and Contestation in Triggering Rule of Law Policy Tools As this section shows, prevailing partisanship in the EP meant that it took almost eight years—from the first debates in 2010/2011 until September 2018—to see Article 7 TEU triggered against Hungary with the support of the majority of the EPP group. Conversely, it took only a couple of months to see the EP invoking Article 7 TEU against Poland. It also took a couple of months for the S&D to detach themselves from their Maltese Partit Laburista members and even less time for them to criticise the action taken by the Romanian PSD, arguably also for reasons of internal strategy. Renew members detached themselves from the Czech ANO 2011 party without much difficulty, yet like the Romanian PSD, they were supported by other Eastern Europeans (amongst others) from the ECR and the radical right, as illustrated in the following sections. Triggering Article 7 TEU Against Hungary: The EPP’s Strategic and Discursive Coalition with the “Untidy” Right The revision of the Hungarian Constitution in 2011—which came into force on 1 January 2012—and the media law were among the first topics under discussion during the EP’s seventh term. In the plenary on 18 January 2012, Prime Minister Viktor Orbán explained the rationale behind the domestic transformations: in addition to the new Fundamental Law, he proudly announced that 25 cardinal laws and 339 other pieces of legislation had been passed since the beginning of his mandate (EP, 18 January 2012). Two main positions crystallised within the EP, opposing, on the one hand, a liberal full left coalition bringing together the centre-to-the-left political groups and ALDE/Renew and, on the other hand, the full right, comprising the EPP, ECR, EFDD, ENF, and NA, who fiercely opposed any interference from EU institutional actors on issues at the core of state sovereignty. On 8 June 2011 and on 18 January 2012, the two camps clashed over the nature of the problem (deciding whether it was a domestic issue or European concern) and the action to be taken (whether to act in the name of compliance with EU treaties and law or in the name of the people and parliamentary sovereignty), as illustrated in Table 5.1.

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Table 5.1  Discursive coalitions in the European Parliament. Debate on the situation in Hungary Framing questions

Positions of EPP, ECR, EFDD, EFD, NA

Positions of GUE, Greens/EFA, S&D, ALDE

What is the problem?

A national issue (EPP; ECR) The constitution threatens the pillars of democracy, but the solution should come from the citizens (ECR)

A European “problem” The compatibility of the constitution with European values (ALDE) The procedure leading to the adoption of the new constitution (ALDE; S&D) The discriminatory nature of the constitution (S&D): the definition of nationality, the narrow definition of family, and the rights of Roma and LGBTIQ people (GUE/NGL) The state of democracy (Greens/ ALE) The violation of fundamental rights (GUE/NGL; ALDE) Authoritarian spirit (Greens/EFA)

What is the cause?

The EU is the problem as it adopts decisions that create “mass unemployment, mass poverty and mass suffering” (NA) “Fury of the European left” (EFD) and “hysteria” (ECR) Solution/Who Right of the Hungarian people to should act? determine their constitution (EPP) The debate “should take place among the people not in this house” (EPP) The Commission is right to launching infringement proceedings (EPP)

EU’s competence to establish national law’s compatibility with EU law (Greens/ALE) The Constitution should be in accordance with EU values (Greens/ALE) the Commission should play a more active role (S&D) Art 7 TEU (GUE/NGL; ALDE) (continued)

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Table 5.1  (continued) Framing questions

Positions of EPP, ECR, EFDD, EFD, NA

Positions of GUE, Greens/EFA, S&D, ALDE

What are the underlying values?

Equality of member states (EPP) National identity (EPP; ECR) Sovereignty of member states (EPP; EFD; V. Reding, European Commission) Traditional concept of family (ECR; EFD) Self-determination (NA)

Democracy (ALDE; S&D; Greens/EFA) Fundamental rights of European citizens (ALDE; S&D; Greens/ EFA) European values do not equal Christian values (GUE/NGL)

Source: Drawing on the analysis of the EP debates on 8/06/2011 and 18/01/2012

On the one hand, for the EPP, EDF, ECR, and NA members, the revision of the Hungarian constitution was a purely national concern (as argued by about 34 MEPs out of 74 in the plenary on 8 June 2011) and this view was also shared by the Commission, represented in the EP debates by Commission President José Manuel Barroso, and by Commissioner Viviane Reding (both from the EPP political family) as well as by the representative of the Council. The Commission, guardian of the treaties, sought to avoid constitutional concerns and intrusion in national sovereignty. In President Barroso’s words, these were “matters of political judgment” and “ideologically polarised” (EP, 8 June 2011). For this reason, the Commission decided to launch infringement proceedings regarding the independence of Hungary’s Central Bank, on the retirement age of judges, and the independence of the date protection authority, as declared by Commissioner Reding in the plenary of the EP on 8 June 2011. EPP MEPs acclaimed the Commission’s decision to embrace a “technical approach” vis-à-vis Hungary scrutinising the compliance of national legislation with EU law instead of looking at the respect of EU values (Joseph Daul MEP, EPP). The group leader, MEP Manfred Weber (EPP), praised the Hungarian Constitution and, as a token of legitimacy, argued that in some respects, it was similar to the German Constitution. In addition, EPP, ECR, and NA members paid tribute to Viktor Orbán’s new Constitution and to its definition of a family as a union between a man and a woman. ECR members also lauded the translation of Fidesz’s conservative ideology into concrete domestic policies, as underlined by MEP Zbigniew Ziobro (ECR). In the same debates (EP, 8 June 2011),

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for the EPP, ECR, EFD, and ID, the discussion about changes in Hungary was an “ideological fight” (EPP), often described in pejorative terms, as “hysteria” (Legutko MEP, ECR) or “the fury of the European left” (Kurski MEP, EFD) against the enshrinement of Christian values in national constitutions, as a “left liberal nonsense” (Van Dalen MEP, ECR) or “outrage against a country’s sovereignty” (Gargany MEP, EPP). National sovereignty, self-determination and the right of the Hungarian people to determine their own Constitution have been the most common legitimising arguments put forward by the EPP (Busuttil MEP, EPP; Gyürk MEP, EPP) and the other right-wing groups, who contended that the matter should be discussed among the Hungarian people. MEPs from the EPP and ECR groups also denied the right of the EP to seize upon this question (Busuttil MEP, EPP; Broke MEP, EPP; Ziobro MEP, ECR), illustrating their preference for “less integration”. In contrast, other EPP members recognised the role of the EP in dealing with questions related to the respect of values and rights (e.g. Weber MEP, EPP), but nonetheless contended that the decisions of the Hungarian government led by Fidesz should not receive so much attention at the supranational level. Regarding the question of “more or less integration”, the EPP was divided. Both Christian Democrats and the radical right groups converged in emphasising that “the solution can only come from the citizens” of the member state (Bokros MEP, ECR), as unique source of legitimacy, rather than from the EU or EP. Yet the support for Viktor Orbán was not undisputed. Within the EPP, members from Slovakia expressed some criticism, pointing to the example of the Fidesz government policies vis-à-vis the Hungarian minorities in the neighbouring countries. There were also some critical voices from the ECR group, condemning the dismantlement of democracy in the country. On the other hand, the GUE/NGL, the Social Democrats, the Greens/ EFA, and the Liberals no longer saw the changes in Hungary as a national problem (see Table  5.2)—given the EU’s competence to establish the compatibility of national law with EU law (Albrecht MEP, the Greens/ EFA)—but rather a matter of concern for all EU member states (Sargentini MEP, the Greens/EFA). Members from the Greens/EFA emphasised that fundamental rights were at stake (in ‘t Veld MEP, ALDE) leading ALDE members to call to trigger Article 7 TEU. Drawing on reports and concerns from many regional and international organisations, both Guy Verhofstadt MEP (ALDE) and Cohn Bendit MEP (the Greens/EFA) argued that at its core, the debate was about the basic values of the

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Table 5.2  Polarised understandings of the rule of law in the EP Rule of law dimensions

GUE, Greens/ALE, S&D, and ALDE positions

EPP, ECR, EFDD, EFD, and NA positions

Legality

The rule of law is enshrined in EU Treaties, European and international Charters and Conventions

Consent Control

National and European citizens European Commission as guardian of the treaties Fundamental rights

The rule of law and the law are rooted in popular sovereignty (NA; GUE/NGL (divided); EFDD) Law is rooted in parliamentary sovereignty (EPP) Citizens at the domestic level National institutions

Substance

Christian values

EU. While the EPP was praising the Commission for the way in which it chose to play its role, members of GUE/NGL criticised the Commission’s decision to focus its infringement action only on the independence of the Central Bank in Hungary. Some MEPs expected to see the Commission “doing more” as guardian of the Treaties (e.g. Swoboda MEP, S&D). In contrast, for the Christian Democrats and the radical right, what was at stake was the right of Hungarians to determine their constitution. In contrast, the core of the problem for the S&D, GUE/NGL, ALDE, and the Greens/EFA was the violation of fundamental rights against the treaties (Tavares MEP, GUE/NGL; Lunacek MEP, the Greens/EFA) and the “discriminatory nature” of the Hungarian Constitution (Benova MEP, S&D) towards Roma people, LGBTIQ communities, and women (in ‘t Veld MEP, ALDE). Forty out of the 73 interventions during this debate in January 2012 framed the issue at stake in this way, with both ALDE and S&D members as well as the Greens/EFA promoting “more integration”, while GUE members were divided between the two positions. Overall, two polarised understandings of the issues at stake clashed (Table 5.2) over the nature of the problem (as a national issue vs. European concern) and the action to be taken (whether in the name of the compliance with EU treaties and law vs. in the name of the people and parliamentary sovereignty), with implications for how to safeguard democracy and the rule of law in the EU polity. Radical right groups and Christian Democrats tended to understand the rule of law in terms of legality anchored at the national level, with the people and national institutions giving meaning to its substance, consent, and control, while the radical

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left, the Greens/EFA, the liberals, and Social Democrats regarded the rule of law anchored in the EU as a community of law (legality), in the name of European citizens (consent) whose fundamental rights (substance) need should be protected by supranational means (control). This was only the beginning of a debate which lasted several years before triggering Article 7 TEU, without much change in the strategic and discursive alliances, as the next section shows. Against this backdrop, in its resolution of 16 February 2012 (2012/2130(INI), the EP instructed its LIBE Committee to follow up on the situation in Hungary. As Rui Taveres MEP (Greens/EFA) stated in 2013, over one year, the EP examined more than 500 changes in Hungary (including the Constitution), which, in Tavares’s words, altered “all the corners of democracy”. Assigned as rapporteur, Tavares MEP argued that “the pace and the scope of the changes” were “unusual”, leading to a concentration of power with the majority and the government (EP debate, 2/07/2013). The resolution 2012/2130(INI)1 concluded that developments in Hungary were incompatible with the values referred to in Article 2 TEU, Article 3 (1) TEU, and Article 6 TEU and also deviated from the principles in Article 4(3). Going further, the resolution also asked the Conference of presidents to assess the opportunity of resorting to Article 7(1) in case the responses of Hungary appear not to comply with Article 2 TEU (paragraph 86). Beyond listing the disputed changes in Hungary, the resolution provided a series of recommendations to the Hungarian authorities and to the Commission, the European Council (whose silence was criticised), as well as to national parliaments, inviting them “to enhance their role in monitoring compliance with fundamental values” (2012/2130(INI). The report was adopted in the LIBE Committee with 31 votes in favour, 19 against, and 8 abstentions, and in the plenary with 370 votes for, 249 against, and 82 abstentions, as a result of a coalition between the radical left, the left, the liberals, and the Greens, opposed to the Christian democrats, the conservative and reformists of the ECR, the EFD group, and NA.

1  The Resolution underlined the points of concern in Hungary including the process of adopting the Fundamental Law, the weakening of checks and balances, in particular the Constitutional Court, the Parliament and the Data Protection Authority. It discussed the independence of the judiciary, the electoral reform, and the media legislation, as well as respect for the rights of minority groups.

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The two sides of the political spectrum were clearly divided (Fig. 5.2), with some signs of divisions within GUE/NGL, on the one hand, and fragmentation within all the other groups on the right, including the EPP. Inside the EPP, criticism of Viktor Orbán started to grow, in particular after his declaration at Baile Tusnad in Romania, when he announced his intention to establish an “illiberal democracy”, to which Frank Engel MEP (EPP) responded that Christian Democracy is liberal democracy and only a liberal Christian Democracy is compatible with European democracy. A few members of the ECR, the EFD and NA voted in favour of this first resolution. In reaction, on 6 July 2013, the Hungarian Parliament also adopted a resolution contending that the EP was overstepping its role and underlining the fact Hungary wished to belong to an EU which was not “a Europe where freedom is reduced, large member states abuse their powers and where the sovereignty of nations is violated” (Agence Europe, 6 July 2013). The legitimacy of the two parliaments was in tension: the twothirds majority of Fidesz in the Hungarian Parliament opposed the majority in the EP that brought together the radical left, the S&D, the liberals,

Fig. 5.2  Rule of law in Hungary. Vote on the provision included in the resolution 2012/2130(INI) 3 July 2013 on the situation of fundamental rights: standards and practices in Hungary stating that “the Commission, Council and Parliament should designate representatives to assess Hungary’s compliance with Article 2 TEU”. (Source: VoteWatchEurope for this book)

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and the Greens. Not only did Viktor Orbán say that the EP report went “too far”, he also denounced what he called “the Soviet tendencies of the EU”, a constant comparison made by Prime Minister Orbán when referring to the power relations between the EU and his country (Agence Europe, 3/07/2013). The EPP group’s leader, Manfred Weber, also stated that the “report went beyond EP’s remit” as the institution, in his words, “does not have the remit to act as a Court and tell people how they should live” (Agence Europe, 3/07/2013). Triggering Article 7 TEU was a long process, as more than half of the EP was quite opposed to this decision. At that time, the topic was rather absent from the agenda of the Council (Chap. 6), while the Commission believed that the conditions had not been met for activating the first stage of the RLF (Chap. 4). Even in the EP it took several years for previsions about Article 7 TEU in the resolutions to move from the recital section to the main body, and from being expressed through conditional verb forms to present tenses, as illustrated in the following discussion. In June 2015, at the beginning of the eighth term, in the midst of the refugee crisis and following Viktor Orbán’s declaration about possibly putting the question of the death penalty on the national agenda (April 2015), the EP adopted a resolution (EP, 2015/2700(RSP), approved by 362 votes in favour, with 247 against, and 88 abstentions, driven by the same coalition of the full left against the full right. Although Orbán’s suggestion about the death penalty was not realised, the EP condemned his statements. Within the resolution which mentioned in the recital Article 7 TEU, each word was carefully chosen, and the conditional very often used, to be able to reach consensus in a divided EP. As an illustration of discursive caution, the resolution only recalled that a serious breach of the values “would trigger Article 7” and that developments in Hungary “have led to concerns” that “could represent an emerging systemic threat to the rule of law”, and, as such “developments could develop into a clear risk of a serious breach within the meaning of Article 7”. Moreover, the resolution deplored the Council’s “absence of reaction” in the almost five years since the first debates had taken place in the parliament, on the one hand urging the Council and the European Council to “hold a discussion and to adopt conclusions on the situation in Hungary” and, on the other hand, asking the Commission to activate the first stage of the RLF. Considering the carefully chosen words, a difference of only 17 votes enabled the adoption of this resolution, showing the strong division of the

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EP between the centre-to-the left groups and ALDE versus the Christian Democrats and the untidy right in this regard. In the resolution adopted on the 12 December 2015, MEPs deplored the criminalisation of refugees in Hungary, the increasing recourse to detention, the use of xenophobic rhetoric by the Fidesz party, and the fact that Hungarian legislation made it difficult for refugees to access international protection difficult. As discussed in Chap. 3, in the 2000s, the FPÖ’s xenophobic discourse vis-à-vis migrants led to the suspensions of diplomatic relations between Austria and the 14 EU member states. In 2015, the EP called on the Council to react to the “to worrying developments” and urged both “the Council and the European Council to hold a discussion and adopt conclusions on the situation in Hungary”. The Commission was once more invited to trigger the first stage of the RLF instead of following a technical approach (infringements). Article 7 TEU was invoked again, as the EP called on the Commission to closely monitor the situation in the country, evaluating the emergence of a systemic threat which could develop into a clear risk of a serious breach within the meaning of Article 7 TEU (EP, 10 June 2015; EP, 2015/2935(RSP)). It was once again possible to adopt this resolution thanks to coalition of the S&D groups, ALDE/Renew, the Greens/EFA, and GUE/NGL. Article 7 TEU remained a divisive issue. Like the Commission, in 2015, many EPP members, including the Germans, believed that its activation was premature. The EPP was in its large majority against (Fig. 5.3). The EFDD group was divided. Divisions could also be observed among the groups in favour, that is, within S&D group, the radical left, and the liberals too. The reference to Article 7 TEU dissuaded a few members from Central and Eastern European countries from supporting the resolution. In the S&D group, the Romanian and Czech Social-Democrats abstained, as did the Czech and Lithuanian members from ALDE.  These abstentions, as well as the vote against of some GUE/NGL members, tilted the outcome to the benefit of Fidesz (VoteWatchEurope data for this book), in a reflection of the East-West divide. As a result, the provision about Article 7 TEU did not pass, thanks to the massive support of the EPP (albeit with the first signs of division), the ECR, half of the EFDD group, and all the ENF members and NA (Fig. 5.3). The resolution was adopted with 327 votes in favour and 293 against, urging the European Commission to initiate an in-depth monitoring process concerning the situation of democracy, the rule of law, and fundamental rights in Hungary, which did not materialize.

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Fig. 5.3  Rule of law in Hungary. Vote on the provision of triggering Article 7 TEU in the 2015 EP’s resolution (16/12/2015). (Source: VoteWatchEurope, commissioned for this book)

It would be another two years, until May 2017, before the EP passed a new resolution (EP, 2017/2656(RSP), using fewer conditional forms “would” and “could”, and explicitly stating that the situation in Hungary “represents a clear risk of a serious breach of the values referred to in Article 2” (Article 9, 2017/2656(RSP). Initially, many EPP members were rather in favour of such a resolution. Nonetheless, two drafts were under discussion: one supported by ALDE, the S&D group, the Greens/ EFA and GUE/NGL, and another one by the EPP. The former included a reference to Article 7 TEU, while the version supported by the EPP did not. The former was adopted stating that the situation in the country “warrants to launch” the first stage of Article 7 TEU (point 9). This time too, the words were carefully chosen, as the resolution was not calling for the triggering of Article 7 TEU per se, but, as a preliminary step, it instructed the EP’s LIBE Committee to draft a report on a reasoned proposal calling on the Council to act pursuant to Article 7 TEU. The inclusion of the reference to Article 7 TEU led some to change their minds. Without this insertion, it was argued that the EPP group would have been supported the resolution with a large majority. However, the group voted massively against this provision (see Fig. 5.4). Before the vote, the leader of the EPP group, Manfred Weber, refused to give vote instructions. MEP

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Fig. 5.4  Rule of law in Hungary. Vote on the provision mentioning Article 7 TEU in the EP’s 2017 resolution (17/05/2017). (Source: VoteWatchEurope for this book)

Weber, along with 67 EPP members, voted against (Agence Europe, 17/05/2017). After the vote, he explained that his group was supporting the Commission’s action to launch infringement proceedings rather than the activation of Article 7 TEU.  The 2017 resolution was approved by 393 votes in favour, with 221 against and 64 abstentions. Only after eight years of debates, in 2018, the EP voted the Sargentini Report (EP, 2017/2131(INL)), named after the Dutch member of the EP Greens/EFA group, calling on the Council to trigger Article 7 TEU against Hungary. This was for the first time since the introduction of the Article 7 TEU procedure in the treaties that the EP adopted such a decision. Parts of the report drew on Tavares’s report, for example, regarding how the EU should shape its rule of law policy. But most of the report drafted by MEP Judith Sargentini developed a reasoned opinion scrutinising all the domestic measures that the Hungarian government has adopted since 2010, leading the parliament to believe that “there is a clear risk of a serious breach by Hungary of the values” on which the EU is founded (EP, 2017/2131(INL). The resolution pointed out that more was at stake now as compared to the first debates in the EP about constitutional revision and the limitation of judicial independence, since the Hungarian

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Fidesz government has adopted new measures restricting media pluralism, the space of civil society, and academic freedom, among others.2 Before the vote, Judith Sargentini stated that “the result would be tight” (Agence Europe, 6/09/2018). The outcome was still uncertain just a few moments before the announcement, although within the EPP, there were signs of significant divisions. After so many years of debate, the problem for the EPP members in 2018 was not the content of the report as such, but rather the activation of Article 7 TEU. The leader of the group, Manfred Weber, declared that Christian Democrats were ready to support the activation of this procedure if the Hungarian prime minister did not “give pledges on NGOs or foreign university” (Agence Europe, 11/09/2018), referring to the closure of the Central European University (CEU). This was one of the red lines set out by the EPP (Kelemen, 2020, p. 488). While the message from the group was still conditioned by “if”, Sebastian Kurz, member of the EPP and then Chancellor of Austria and member of the European Council, recommended its party members to support the report drafted by MEP Sargentini. On 18 September 2018, the report (EP, 2017/2131(INL)) was passed in the plenary of the EP with 448 votes in favour, 197 against, and 48 abstentions. This result revealed a major shift in EPP’s position, as illustrated in Fig. 5.5. Within the EPP, the number of MEPs denouncing the transformations in Hungary considerably increased (Laffan, 2019). The Sargentini Report was supported by 115 members of the group, while 28 abstained and only 56 voted against. In 2015, only 3 EPP members voted in favour, 8 abstained and 184 opposed, while in 2017, 21 voted in favour, 7 abstained, and 174 opposed. While a majority of EPP members distanced themselves from Fidesz, Orbán’s party still received support from the ENF group, some of the EFDD and NA, as well as some of the ECR and EPP, and also a few members of the S&D, ALDE, and GUE/NGL MEPs. In March 2019, Fidesz was suspended by the EPP and it left the group in March 2021. As a result, during the EP’s ninth term, the resolution on the ongoing hearings (Chap. 6) under Article 7(1) of the TEU received the highest support so far: 67% of MEPs in 2020 versus 65% in 2018 and 58% in 2017 (Herman et  al., 2021, p.  173). In 2020, the Fidesz maintained its support from the ECR and ID, as well as gaining support  The Report focused on the constitutional and electoral systems, the independence of the judiciary as well as on corruption and conflicts of interests, paying particular attention to the freedom of expression, academic freedom, freedom of religion, freedom of association, right to equal treatment, rights of minorities including Roma and Jews, fundamental rights of migrants, economic and social rights. 2

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Fig. 5.5  Rule of law in Hungary. Vote on the EP’s 2018 resolution (12/09/2018). (Source: VoteWatchEurope for this book)

from a few members of the Czech ANO 2011, a member of Renew Europe. It is interesting to note that in January 2020, when the EP voted a resolution on the hearings under Article 7 TEU, Fidesz’s list of friends within the EPP group diminished. Fidesz lost the support of most delegations from CEE countries (with a few exceptions such as Slovenia, Croatia, and Bulgaria). In contrast, support has been expressed by EPP delegations from Southern Europe, in particular from Spain, France, and Italy, offering a slight nuance to the East-West divide that generally characterises voting behaviour in the group. The EPP’s Support for the Bulgarian GERB During the ninth term of the EP, after the murder of Bulgarian investigative journalist Viktoria Marinova in October 2018, criticism intensified regarding the rule of law situation in Bulgaria. Although Marinova’s murder was not connected to her activity as an investigative journalist, the EP debated the high level of corruption allegations and reports of the misuse of EU funds, some of them involving the Prime Minister Boyko Borisov (member of the EPP), as stated in the resolution adopted by the EP on 8 October 2020. As another illustration of partisanship, the EPP closed ranks not only for Fidesz but also for the Bulgarian GERB. The resolution

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Fig. 5.6  Vote on the EP’s 2020 resolution on the general situation in Bulgaria (8/10/2020). (Source: VoteWatchEurope for this book)

(EP, (2020/2793(RSP)) notably called on the Commission to monitor the reform of the judiciary and the fight against corruption in Bulgaria, as well as to make use of the other tools available, including infringement procedures, the RLF (Chap. 4), and budgetary tools. The resolution was backed by the S&D, Renew, Greens/EFA, and GUE/NGL and was opposed by the EPP, ECR, and ID groups (Fig.  5.6). Within the EPP, GERB did not receive support from the North-Western delegations such as the Belgians, Luxembourgish, Finnish and some of the Swedish MEPs. It also received limited solidarity from those EPP parties from the Central and Eastern European EPP parties, including the Polish Civic Platform (in opposition to PiS in Poland), the Czech members (who opposed Prime Minister Babiš’s government), and the Slovak members (who were very critical of the record of SMER government’s record on rule of law) did not support it, showing that the position of parties in government matters in explaining voting behaviour and the East-West divide seemed to play little in explaining the voting behaviour here. Discursively, the EPP remained closely aligned to the ECR and the radical right groups, despite its volte face in the case of Fidesz.

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The Slow Detachment of the S&D from Their Romanian Members: Discursive Coalitions in Reverse The situation in Romania had already been on the EP’s agenda in 2012 when MEPs were debating the political and institutional changes in Hungary. The debate mirrored discursive coalitions in reverse. The arguments put forward by the EPP, the ECR and the radical right in support of the Hungarian Fidesz party this time were at the core of some of the arguments within the S&D group, while the Liberals and the Greens/ EFA adopted a position in between seeking to focus more generally on the EU’s rule of law policy rather than on domestic concerns. In September 2012, the Romanian PSD government led by Prime Minister Victor Ponta (S&D) sought to bring about a referendum to impeach the Romanian President Traian Basescu (member of the PDL Romanian party, affiliated to the EPP). Prime Minster Ponta accused the president of overstepping his authority and, by the same token, of violating the constitution, infringing the separation of powers and the independence of the judiciary, by appointing loyal persons in key positions in the justice system and using the secret service against his political rivals. Conversely, the president lamented the attempts of the government to control the judiciary. Despite the unpopular reforms adopted in the context of the economic crisis and the decreased popularity of the President (due to the austerity measures in the country), the referendum organised on 29 July 2012 was invalidated due to having a turnout below to 50% (46.13%, with 87.55% of the votes in favour of impeaching of the president and 11.12% against). In September 2012, speaking before the EP, Commissioner Viviane Reding—who was also following the situation in Hungary—deplored the “constitutional and parliamentary coup” taking place in Romania. MEPs, mainly from the left, lamented the fact that the Commission was raising concerns about political developments in Romania while embracing a wait and see approach to the situation in Hungary. S&D and ALDE members disapproved of the Commission’s partisanship. Hungarian Social Democrats members criticised the fact that the Commission had not taken the same critical stance as it did with Romania when the Hungarian government limited the power of the Constitutional Court. As in previous debates, MEPs disputed the nature of the problem and debated whether the EU should act or refrain from initiating action (Table 5.3).

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Table 5.3  Rule of law. Discursive coalitions in reverse in the EP Framing questions

GUE, Greens, Social Democrats, EPP, ECR, EFDD, EFD, and NA and Liberals positions positions

What is the problem?

A national issue (GUE/NGL) Institutional instability in Hungary and in Romania (ALDE)

What is the cause?

Austerity, poverty, and unemployment (GUE/NGL) Weak democratisation (ALDE) The Commission’s objectivity The Commission is overstepping its is questionable (Greens: S&D; power (NA) ALDE; EPP) The Commission’s inaction in the case of HU (S&D) “brutal intervention from the Commission in legitimate constitutional and legal procedures” (ALDE) The Romanian people should find a solution (GUE/NGL) The right of the Romanian Sovereignty (NA) parliament to adopt decisions is at risk (S&D)

Who should act?

What are the underlying values?

“a parliamentary coup” (Reding, European Commission, member of the EPP) “pressure on judicial independence is unacceptable; concerns about respect for constitutional norms and judicial independence” (Reding, European Commission, member of the EPP) Romania: “banana Republic”; “the country is a mess, but it is their mess” (NA)

Source: Drawing on the EP’s debates on 9/12/2012

On the one hand, GUE/NGL members insisted on the sovereignty of the people (MEP Angourakis MEP, GUE), with any action of the EU being seen as “an insult to the Romanian people”, that is, to the 7.4 million of Romanians who voted to impeach the president. On the other hand, ECR and NA members invoked sovereignty as the highest source of legitimacy, also arguing that the issues at stake were a Romanian problem. However, if the policies of Viktor Orbán were applauded, Romania was painted in dark colours, even pejoratives, as seen in an intervention by

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Daniel Van Der Stoep MEP (NA) who compared the country to “a Banana Republic” (whatever that meant). The rule of law in Romania was discussed again in the eighth term, in 2018, when the Romanian PSD government sought to adopt new legal codes and to decriminalise facts of corruption. Debates in the EP led to the adoption of a resolution on 13 November 2018. At that time, the Romanian government was about to amend the laws adopted in 2004 on the status of judges and prosecutors, on judicial organisation, and on the Superior Council of the Magistracy, which had paved the way to the country’s accession to the EU. The role of the Romanian Intelligence Service and its interferences with the activities of the Romanian judiciary were also under discussion, a serious dysfunction underlined by the government in order to legitimize the amendments proposed. In addition to these amendments, the government was planning a referendum on several sensitive issues (endorsed by the parliament which dominated by the Social Democrats), including voting to define family as a marriage between a man and a woman (like in Hungary). The referendum failed to reach the required turnout (Norocel & Baluta, 2021). In contrast to the EPP group, which long supported Fidesz, the S&D group supported the 2018 resolution calling on the Commission to monitor the situation and to offer full support to Romania in finding adequate solutions. However, the S&D group, like the Greens and ALDE members, repeatedly underlined the need for an independent mechanism to monitor the situation in all member states, not only in some. The resolution (EP, 2018/2844(RSP)) was approved by all Greens/EFA as well as a large majority of the GUE/NGL, S&D, ALDE, the EPP, and even some members of the ECR, EFDD, ENF groups, and NA, as illustrated in Fig. 5.7. This vote shows the Eastern European parties’ tendency to vote against such resolutions, although the weight of this opposition is rather limited, as illustrated in Fig.  5.7. Unsurprisingly, the Romanian PSD members voted against the final resolution. They received supports from other Central and Eastern Europeans including Bulgarians and Slovaks, Czechs, Croatians, Slovenians, as well as the Maltese S&D MEPs, albeit limited. The government of Prime Minister Viorica Dancila was also able to rely on limited support from other CEE parties from other groups that had faced similar accusations, such as the Hungarian Fidesz and Polish PiS parties, as well as parties that generally have moderate positions on such matters, such as Bulgarian DPS (VoteWatchEurope data for this book).

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Fig. 5.7  Vote on the 2018 EP’s resolution on the situation in Romania (13/11/2018). (Source: VoteWatchEurope for this book)

The EPP-S&D Clash over the Rule of Law in Malta The brutal murders of Daphne Caruana Galizia in October 2017 in Malta, and Jan Kuciak in February in Slovakia unveiled the links between organised crime and political elites in Europe, as well as facts about corruption and fraud, raising questions about the foundations of the EU as a “community of law”. Although all were appalled by the events, the left and the right-wing political groups were rather divided on the issue at stake (EP debate, 14 November 2017). The question was less whether this was a European or a national problem, but rather whether this was a rule of law problem (as the EPP members framed it), similar to other concerns, or “just” a corruption problem (as the S&D group argued). On the one hand, EPP member Gonzales Pons MEP called on the Commission to launch the RLF, arguing that “the rule of law collapsed in Malta” (EP debate, 14 November 2017). Frank Engel MEP contended that the rule of law had collapsed far earlier, and that Caruana Galizia’s murder was just “the consequence of the total collapse of the rule of law”, “one of the consequences of the privatisation of state institutions”, and “the subjugation of the state institutions to private interests” (EP debate, 14 November 2017). In the same vein, David Casa MEP (EPP) developed an argument relating to the collapse of the rule of law “when the culture of impunity becomes the norm”. ALDE MEP Pagazaurtundia stated that

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the murder of Daphne Caruana Galizia revealed not only that the rule of law had failed but also that “corruption reaches the heart of the state” and that tax avoidance and tax evasions are not only global but also “organised systemic practices” (EP debate, 14 November 2017). Since rules were being circumvented in Malta, the very meaning of the rule of law was at stake. GUE MEP Le Haric also framed the issue in this way, arguing that the existence of a member state within the EU which “sells passports, avoid taxes and does not respect EU law” raises serious concerns about the EU as a “community of law” (EP debate, 14 November 2017). On the other hand, members of the S&D—the group to which members of the Maltese government (led by Joseph Muscat, Paartit Laburista) belonged— stated that the major concern was not the rule of law but corruption, seeking to decouple the debates on Malta from others on the situation in Poland and Hungary (Tanja Fajon MEP and Ana Gomes MEP, S&D). In November 2017, a joint resolution (EP, 2017/2935(RSP)) was tabled by the EPP, ECR, ALDE/ADLE, Greens/EFA, and GUE/NGL, drawing support from all the groups except some S&D members and the right-­ wing nationalists. Although the resolution was very critical, Article 7 TEU was only mentioned in the recital. The decision of S&D members to abstain (Fig. 5.8) could be explained by internal divisions within the group, with some members wishing to

Fig. 5.8  Vote on the EP’s 2017 resolution on Malta (15/11/2017). (Source: VoteWatchEurope for this book)

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dispel potential accusations of partisan considerations when voting on rule of law matters. The German SDP was split as was the Italian Partito Democratico. Criticism of the Maltese Labour governments was concentrated among Western and Northern members of the S&D group, such as the Belgian, Dutch, Austrian, Danish, and Swedish Social-Democrats parties, who had also been particularly vocal on rule of law matters concerning Poland and Hungary. Conversely, as an expression of the East-West divide, the Maltese members could count on the support of Czech, Slovak, and Cypriot members, alongside a few others S&D members. The position of the S&D members vis-à-vis the situation in Malta changed over time. In December 2019, they joined the other political groups in tabling a critical resolution on the rule of law (Fig. 5.9). Yet this time the context was different. The vote took place after the decision by former Maltese Prime Minister Joseph Muscat to announce his resignation following reports of the alleged involvement of Muscat’s chief of staff in the murder of Caruana Galizia. This resolution included a reference to a future possibility of triggering Article 7 TEU and urged the Commission to engage in a dialogue with the Maltese Government in the context of the RLF. The text was supported in the vote by members of S&D, together with Renew Europe, EPP (including Fidesz), ECR (including PiS), the Greens/EFA, and GUE/NGL. Within S&D, only its Maltese members

Fig. 5.9  Vote on the EP’s 2019 resolution on Malta (18/12/2019). (Source: VoteWatchEurope for this book)

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voted against the resolution, while just a single Romanian S&D member (MEP Carmen Avram) expressed solidarity with their Maltese colleagues by deciding to abstain (VoteWatchEurope data provided for this book). The reference to Article 7 TEU was not supported by Fidesz (whose members voted against) and PiS (which abstained, like the ID). Less Contestation and Dissensus: A Grand Coalition Against PiS The debate on democracy, the rule of law, and fundamental rights in Poland became a topic of debate during the EP’s the eight term, after the Law and Justice Party came to power in Poland in October 2015, in reaction to the first measures adopted concerning the nomination of the judges of the Constitutional Tribunal and its subsequent paralysis (Sadurski, 2019). The EP’s first resolution on the situation in Poland was adopted a few months later, in April 2016 (EP, (2015/3031(RSP)). The parliament urged the Polish Government “to respect, publish and fully implement without further delay the Constitutional Tribunal’s judgment of 9 March 2016 and to implement the judgments of 3 and 9 December 2015” (EP, 2015/3031(RSP). The resolution was adopted with 514 votes in favour, 142 against, and 30 abstentions (Fig. 5.10), setting the radical left, Greens/EFA, S&D, Renew, and the EPP against the ECR,

Fig. 5.10  Vote on the EP’s 2016 resolution on Poland (13/04/2016). (Source: VoteWatchEurope for this book)

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ENF, EFDD, and NA. While debates about the situation in Hungary led the EPP to close ranks and to support Fidesz through a series of arguments which brought the group closer discursively to the radical right, when the situation in Poland was under debate, both in terms of their votes and discourse, the majority of the EPP joined the Greens, the S&D, the liberals, and the radical left. Only members of NA and ENF rejected the resolution in block, while half of the EFDD, often divided on such issues, voted in favour of the resolution. Except for the British ECR members and the ENF, opposition to the resolution came mainly from Central and Eastern European political parties. Some GUE MEPs abstained, taking a more critical stance vis-à-vis the EU itself, contending that what was happening in Poland was a consequence of the neo-liberal policies and austerity measures adopted by the EU in the context of the Eurozone crisis (Zimmer MEP; Spinelli MEP). However, despite GUE’s criticism vis-à-vis the EU, its members voted in favour of the resolution adopted on 13 April 2016 (EP, 2015/3031(RSP)), following the debate on 19 January 2016. The Commission had considered that the conditions for activating the RLF were not met in the case of Hungary; however, with regard to Poland, this was launched a few months later, on 13 January 2016, by sending a letter inviting the Polish Government to clarify the measures adopted (Chap. 4). As in previous debates, MEPs deliberated the nature of the problem (national vs. European) and the action to be taken (whether at national or European level), echoing the same contrasting views expressed during the debates on Hungary. But both contestation and dissensus diminished. Here too, the same power dynamics and discursive coalitions came into play, opposing the radical left, S&D, the Greens, and ALDE on the one hand, against the ECR, the EFDD, ENF, and NA on the other, with the big difference that the EPP stood with the former. Only the EFDD groups, ENF, and NA, as well as the ECR—to which the Polish PiS governing party belonged—argued that the matter under discussion was a domestic issue (Iwaszkiewicz MEP, EFDD) and that the EU’s actions were an intrusion into domestic politics (Marusik MEP, ENF), targeted against “conservative policies”, “implemented by democratically elected” governments which stand “in favour of the traditional family and the right to live”, a Schaffhauser MEP (ENF) declared, using rhetoric that the EPP embraced to support Fidesz but not to support PiS. As an illustration of the discursive split between the EPP and the radical right, while Coburn MEP (EFDD) stated that “Polish values are those of its democratically

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elected parliament and government not those of other European nations” (EP, 15 November 2017), Engel MEP (EPP) recalled that “sovereign Poles” are also “sovereign Europeans” that the EP has the right to represent (in the words of Lopes Aguilar, MEP S&D). The EPP voted in favour of the resolution, apart from a few members from Central and Eastern Europe who abstained or voted against it. On 14 September 2016, the EP stated explicitly that the situation in Poland represents “a clear risk of a serious breach of the values referred to in Article 2 TEU” and instructed its LIBE Committee to draw up a report with a view to holding a plenary vote on a reasoned opinion calling on the Council to trigger Article 7 TEU. The resolution was adopted on with 510 votes in favour, 160 against, and 29 abstentions. The only EPP members who opposed the resolution were the Hungarians members from Fidesz, while their Slovak allies and Latvian Vienotiba decided to abstain. Two other resolutions were adopted: one on 17 November 2017 (with 438 MEPs in favour of the resolution versus 152 members against, and 71 abstentions) calling on the PiS government to implement the recommendations of the Commission (Chap. 4) and in order to avoid being triggering Article 7 TEU, with the second resolution in March 2018. In September 2020, when the EP adopted a new resolution (EP, 2017/0360R(NLE)) on the situation in Poland, the ECR was relatively isolated (Fig. 5.11). PiS even lost the support of some Central and Eastern

Fig. 5.11  Vote on the EP’s 2020 resolution on Poland (17/09/2020). (Source: VoteWatchEurope for this book)

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European parties from other groups, again showing how the East-West divide is not a stable pattern. The group could only count on the ID group and a decreasing minority of EPP members. This time, no ECR members were in favour of the resolution. Since the precedent of triggering Article 7 TEU had already been set, fewer MEPs from mainstream groups decided to side with PiS government in 2020, which explains the stronger majority of 75% of MEPs who supported the resolution. Ultimately, within the EPP, only the Hungarian and Estonian delegations opposed the resolution, alongside Slovenian SDS and a few individual members of other delegations. It is interesting to note that the small group of EPP members who abstained included the members of the Polish PSL party, which is currently part of the opposition in Poland. This shows, once again, that political parties who at the national level oppose governments accused of undermining democracy, rights, and the rule of law may not always support the triggering of Article 7 TEU and tend to vote on national lines (VoteWatchEurope data provided for this book). Renew’s Limited Support to Its Czech ANO 2011 Member Ultimately, during the ongoing ninth term of the EP, the rule of law has been discussed from the angle of the conflicts of interests, involving Czechia’s Prime Minister Andrej Babiš, whose party, ANO 2011, is a member of Renew Europe. At the core of the debate lies Agrofet, a conglomerate founded and established by Andrej Babiš, consisting of over 230 companies (EP, 2021/2671(RSP)). Prime Minister Babiš is one of the owners of Agrofet, and also a beneficial owner of the conglomerate which has received EU funding, while at the same time, the prime minister was also involved in the implementation of the EU budget. Thus, in its resolutions, the EP deplored reported attempts by the government to legalise the prime minister’s conflict of interests instead of solving the conflict of interests. The resolution (EP, 2021/2671(RSP)) notably called on the Commission to assess whether there is a systemic misuse of EU funding in Czechia, while calling on the Council to take measures to prevent Babiš from participating in any budgetary decisions. Although ANO 2011 is a member of the Renew Europe, the group joined all other groups in the EP (except for ID) in tabling the critical resolution. As illustrated in Fig. 5.12, the final vote on the resolution was

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Fig. 5.12  Vote on the EP’s 2020 resolution on the situation in Czechia (19/06/2020). (Source: VoteWatchEurope for this book)

supported by EPP, S&D, Renew, Greens/EFA, and GUE, while ID abstained and the ECR was split. The Czech opposition party ODS (Občanská demokratická strana) was opposed to Babiš. The Polish PiS voted against the resolution, as did the MEPs from Orbán’s party Fidesz (then still part of the EPP at the time). Despite sitting in the same groups as Czech opposition parties, Fidesz and PiS were more supportive of Babiš. However, the Slovak SMER party was the only S&D member not to support the resolution. Only a minority of Renew members—namely the Danish Venstre party and Estonian Reform Party—joined the ANO 2011 MEPs. To a lesser extent, ANO 2011 could count on the abstention of other Renew parties, namely Dutch VVD, Bulgarian DPS, and the German Free Voters, as yet marginal (VoteWatchEurope data provided for this book). All these examples show that the substance of resolutions on domestic situations was determined by partisanship and ideology, with some MEPs showing a desire to transcend political quarrels.

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5.4   Reaching Consensus. Working to Establish an EU Mechanism for Democracy, the Rule of Law, and Fundamental Rights Through its successive resolutions, the EP not only expressed its concerns regarding the state of democracy, the rule of law, and fundamental rights in EU member states, but also sought to shape the EU’s rule of law governance. The following section shows that the EP’s report on an EU Mechanism on democracy, the rule of law, and fundamental rights, which has emerged incrementally, received the broad support from political groups in favour of “more” integration rather than less, beyond partisanship and ideological divides and that a consensus over some key principles in the EU’s rule of law governance prevailed over dissensus and contestation. From the Establishment of a Copenhagen Commission to the EU Mechanism on Democracy, the Rule of Law, and Fundamental Rights The EP’s resolutions were not only about developments in the different countries but also about shedding light on principles, values, and above all about how to safeguard these at the EU level. Drawing on the report drafted by Rui Tavares MEP, the EP Resolution adopted in July 2013 (EP, 2012/2130(INI)) proposed that the Commission adopt a more comprehensive approach to addressing any potential of serious breaching of fundamental values in a given member state and a new mechanism to enforce Article 7 TEU, called a Copenhagen Commission, in reference to the criteria for EU enlargement established by the European Council in 1993, in the Danish capital. The Copenhagen Commission was meant to be a “high level group”—a “group of wise men” that would be “independent from political interference”, and would regularly monitor member states’ respect for democracy, the rule of law, and fundamental rights. In addition, to increase the interinstitutional dialogue on such matters, an Article 2 TEU trialogue was proposed to allow the three EU institutions to work together on such issues. However, the majority of MEPs from the EPP, ECR, and EFD were against a new mechanism. The provision was retained mostly by S&D, ALDE, Greens/EFA, and GUE/NGL votes and adopted with 369 votes in favour, 320 against, and 16 abstentions (Sargentini & Dimitrovs, 2016, p. 1088).

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Polarised Views on the Rule of Law Governance Since 2015, the EP has repeatedly called for the establishment of a European mechanism, “independent from political influence” and operating “in full cooperation with other international bodies as regards the protection of fundamental rights and the rule of law” (EP, (2015/2700(RSP)). This instrument would monitor “respect for fundamental rights, the state of democracy and the rule of law in all member states, while fully respecting national constitutional traditions” in order “to warn the EU at an early stage about any risks of deterioration of the values enshrined in Article 2 TEU” and to provide “recommendations to the EU institutions and Member States on how to respond and remedy any deterioration of the values enshrined in Article 2 TEU”. As in previous debates, on 15 February 2015, two antagonistic views were expressed in the plenary debates prior to the subsequent adoption of the legislative initiative report in October 2016. One view saw the rule of law anchored in the nation-state (mainly expressed by ERC members & NA), while the other camp pointed to a need to anchor the rule of law in the EU polity (ALDE, Greens/EFA, S&D), while the EPP opinion on the matter was ambiguous, the EFDD was divided, and GUE/NGL—like the ECR and NA—contended that the EU itself is destroying democracy in member states. Despite this, the radical left members voted nonetheless together with the main groups in favour of adopting an EU Mechanism.3 On the one hand, ALDE/Renew, S&D, the Greens (and even part of the EFDD) expressed strong support for the mechanism. They had been driving the agenda on the rule of law governance in the EP since the beginning of 2000s. MEP Sargentini for the Greens/EFA, MEP Aguilar Lopez for S&D, and MEP in ‘t Veld for ALDE all called for the establishment of a “strong mechanism” and “binding” instrument, like the Stability and Growth Pact (EP debate, 11/02/2015) that could be used when member states violated the values enshrined in Article 2 TEU and the Charter of Fundamental Rights. In contrast, the position of the EPP was more difficult to decipher from the intervention of its members in the debate that took place in October 2015. Although MEP Buda (EPP), in his statement on behalf of the group, provided a definition of the rule of law, with references to Jean Chevallier’s book, the position of the group 3  The GUE was rather critical vis-à-vis the EU and its policies to save the euro, but supported the resolution, stressing the importance of strictly adhering to the Charter of Fundamental Rights and the European Convention on Human Rights.

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remained uncertain. It was also blurred by the interventions from some Hungarian members of the EPP and the Romanian Monica Macovei (former justice minister, member of the EPP until 2015, when she joined the ECR group) who defined the rule of law with a focus on its national anchoring. One year later, the EPP expressed a clearer position before the vote on this own-initiative report in October 2016. Speaking on behalf of the group, MEP Frank Engel stated that the mechanism was important; however, the group was still divided, and this spilt was expressed both in votes and in discourses. While some members from the radical left also expressed their reluctance in the debates, in the end, the mechanism was supported by the GUE (as stated by Barbara Spinelli on behalf of the group in October 2016), despite its critique about the impact of the EU itself on democracy in member states. On the other hand, some parties were fiercely against, including the British members of the ECR, as well as MEPs from the EFDD, ENF, the ECR group, and the NA. Like GUE on the left, these groups invoked the people as source of legitimacy, “their right to decide for themselves” and an understanding of democracy as “power of the people” (Bay MEP, ENF, EP debate, 25/10/2016). Using different words, the opinions of MEPs from these groups converged in pointing out that it is the EU itself which undermines democracy (Gerard MEP, EFDD, EP debate, 25/10/2016). Speaking for the ENF, Gilles Lebreton MEP underlined the legal and political problem with such a mechanism: the legal issue being the empowerment of the Commission “by stealth”, while the political problem was its intrusion into national sovereignty. To illustrate this, NA MEP Bruno Gollnish depicted the proposed EU Mechanism for DRF as a “surveillance of European democracies in the name of democracy”, “a surveillance of democratic governments by ‘experts’ with a suspect legitimacy” (EP plenary, 26/10/2016). MEPs from the radical right groups evoked national conceptions of the rule of law, not so much to put forward differences between understandings, but to remind the parliament that the concept is at the core of the nation-state. The problem was not so much the so-often mentioned diversity of meanings of the rule of law, but the loci of power tout court. As an illustration of this argument of the rule of law being rooted in national traditions and undermined by EU law, Gerard Batten MEP (EFDD) argued (EP plenary, 26/10/2016): We had a rule of law that had evolved since the days of Alfred The Great, but English law is now superseded by EU law. Impartial English courts are now

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overridden by the political courts of the European Court of Justice and the European Court of Human Rights. Our ancient protections of individual liberties such as Habeas corpus have been swept away by such measures as the European Arrest Warrant. We had fundamental rights in England, developed over centuries under common law and such enactments as Magna Carta and the Bill of Rights. There is nothing that the EU can teach the English about democracy, the rule of law and fundamental rights.

For ECR members, the definition of values is a question of national sovereignty. Similar views were expressed by other EFDD members like Angel Chavdarov Dzhambazki MEP from the National Bulgarian Movement, who rhetorically asked whether “the rule of law of each state should not be determined by its population and by its laws” (translation from Bulgarian). The EFDD members were divided, however, in the name of the group, Laura Ferrara MEP underlined the importance of such mechanisms at the EU level, like the GUE/NGL. Besides political considerations, MEPs from the radical right brought the legal aspects to the fore, contesting the legality of the instrument and its intrusion in domestic sovereignty, and even questioning the rule of law of the EU itself, a point which has also occupied the legal services of the three institutions over the past decade, as Chaps. 4 and 7 show. Discussing the ambitions and scope of such European mechanism, ECR MEP Krikhope expressed his reluctance to support the Commission’s scoreboards, monitoring, indicators, and benchmarks to assess values, arguing instead in favour of improving the living conditions in the EU, and by the same token, the situation of fundamental rights (EP plenary, 26/10/2016). In this debate, two antagonistic views were expressed (Table 5.4), contrary to my expectations that I would see a middle range of critiques and disagreements (practice-based opposition) in between (see Chap. 2). Rather, at one end, we find a principled support to the rule of law as a core value for the EU polity, supported by parties in favour of more EU integration; at the other end, there is a principled opposition to the rule of law deployed at the supranational level, supported by the “untidy” right and some “rebels” from other groups on the left and centre, depending on the context and topic. The debate does not reveal practice-based disagreements about improvements needed in member states, considering that the rule of law is an ideal and “work in progress everywhere”. It reflects the confrontation between two polarised visions, which seem to be irreconcilables: one in favour of “more” integration—supported by a large majority

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Table 5.4  Consensus/Dissensus over shaping the EU’s rule of law policy in the EP Degree of consensus/dissensus/ dimensions

Consensus (SD, Critique and Renew, EPP, disagreements+/− Greens/EFA, GUE/ NGL) ++

Dissensus (ECR, EDFF, ENF,NA)−−

Principled support

Principled opposition

Practice-based opposition

Legality

EU as a community Not expressed of law, rights, and values

Control

Supranational with interparliamentary dialogue EU institutions

Not expressed

The rights of EU citizens

Not expressed

Consent

Substance

Not expressed

Law is rooted in the nation states as is the concept of rule of law National

Sovereignty of the people Rights of the people

and the other in favour of “less”, which constitutes a minority. While this minority of voices does not impede the EP’s ability to shaping the EU’s rule of law policy, it blocks such attempts in the Council as discussed in Chaps. 6 and 7). Against this backdrop, on 25 October 2016, the EP adopted a resolution drafted by in ‘t Veld MEP for the LIBE committee (EP debate, 26/20/2016) with 405 votes in favour, 171 votes against, and 39 abstentions, requesting that by September 2017, the Commission should submit, on the basis of Article 295 TFEU, a proposal for the conclusion of a Union Mechanism on democracy, the rule of law, and fundamental rights in the form of an interinstitutional agreement. Figure  5.13 shows the votes of the main groups on this initiative report, as well as the weight of the two polarised discursive coalitions: the first bringing together the Greens with a majority of GUE/NGL members, S&D, a majority of ALDE members, and the EPP (which had the highest proportion of MEPs

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Fig. 5.13  EP’s vote on the establishment of an EU Mechanism on democracy, the rule of law, and fundamental rights (06/10/2016). (Source: VoteWatchEurope for this book)

voting against or abstaining, among the groups supporting the mechanism), while the second included ECR, EFDD (divided), and ENF in fierce opposition, alongside the NA members, as illustrated below. The EU Mechanism on Democracy, the Rule of Law, and Fundamental Rights The resolution 2015/2254INL proposed an EU Mechanism on democracy, the rule of law, and fundamental rights (DRF), presented as “objective”, evidence based, “not subject to political influence”, “non-discriminatory”, and a mechanism designed to federate existing instruments. It was also inspired by ideas “dans l’air du temps”, in imitation of the European Semester (Chap. 4). There were, however, some notable differences between the Semester, as designed by the Task Force in 2010  in the fast-burning phase of the Eurozone crisis, and the EU Mechanism on democracy, as proposed by the EP. As the EP was initially excluded from the coordination of economic policies in the European Semester, the initiative report on the mechanism on democracy emphasised “the key role” that parliament and the national parliaments should play in measuring the progress of—and monitoring compliance with—the

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shared values of the Union, as enshrined in Article 2 TEU.  As the Commission’s RLF (Chap. 4), the mechanism was conceived as a preliminary stage before triggering Article 7 TEU. The proposed mechanism consists of • an annual report on democracy, the rule of law, and fundamental rights (European DRF Report) with CSRs incorporating the reporting done by the European Union Agency for Fundamental Rights (FRA), the Council of Europe, and other relevant authorities in the field; • an annual interparliamentary debate on the basis of the European DRF Report; • arrangements for remedying possible risks and breaches, as provided for by the Treaties, including the activation of the preventative or corrective arms of Article 7 TEU; • a DRF Policy Cycle within the Union institutions. In addition to the strong interparliamentary dimension, in terms of assessment, an Expert Panel was supposed to establish the existence of a clear risk of a serious breach of the values referred to in Article 2 TEU: one independent expert (a qualified constitutional court or supreme court judge) was proposed to be designated by the national parliament of each member state as well as ten further experts appointed by the EP, with a two-thirds majority, chosen from a list of experts nominated by the following organisations: the federation of all European Academies, the European Network of National Human Rights Institutions, the Council of Europe— including the Venice Commission, GRECO, and the Council of Europe Human Rights Commissioner—the CEPEJ, and the Council of Bars and Law Societies of Europe, the UN, the OSCE, and the OECD (2015/2254INL). Importantly, in terms of content, the ambition of the mechanism is to see the EU annual report providing recommendations to all member states on a very long list of key dimensions, covering both the substantive and the formal understandings of the rule of law and a wide range of dimensions of core state powers, such as: –– “the separation of powers, –– the impartial nature of the State, –– the reversibility of political decisions after elections,

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–– the existence of institutional checks and balances which ensure that the impartiality of the State is not called into question, –– the permanence of the State and institutions, based on the immutability of the constitution, –– the freedom and pluralism of the media, –– freedom of expression and freedom of assembly, –– promotion of civic space and effective mechanisms for civil dialogue, –– the right to active and passive democratic participation in elections and participatory democracy, –– integrity and absence of corruption, –– transparency and accountability, –– legality, –– legal certainty, –– the prevention of abuse or misuse of powers, –– equality before the law and non-discrimination, –– access to justice: independence and impartiality, fair trial, constitutional justice, where applicable, an independent legal profession, –– particular challenges to the rule of law: corruption, conflict of interest, collection of personal data and surveillance, –– Titles I to VI of the Charter, –– the ECHR and the protocols thereto” (2015/2254INL). It is important to note that these dimensions listed by the EP in this resolution (EP, 2015/2254INL) to a large extent fall into the five dimensions of liberal/embedded democracy as defined by Merkel (2004, p. 36), including electoral regimes, political and civil rights, as well as accountability and the structure of power. As the Commission and the Council did not act upon the proposed mechanism, on 7 October 2020, the EP adopted a new report (EP, 2020/2072(INL)) calling for the establishment of an EU Mechanism on democracy, the rule of law, and fundamental rights “governed by an interinstitutional agreement between the three institutions” and “covering all aspects of Article 2 TEU”, applying “equally, objectively and fairly to all Member States, while respecting the principles of subsidiarity and proportionality” (EP, 2020/2072/INI).

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5.5   Conclusion A decade of debates in the EP on democracy, the rule of law, and fundamental rights not only reveals increased contestation and dissensus over the compliance with values but also exposes existential debates about legality, control, consent, and substance, which are key component of the rule of law and at the core of the foundations of any political regime. The chapter has shown how partisanship, ideology, and attitudes towards “more” or “less integration” have triggered dissensus, contestation, and consensus and have shaped the EP’s role the EU’s rule of law policy. Section 5.3 illustrated the prominent role of partisanship and ideology as a reflection of dissensus and contestation, while Sect. 5.4 revealed that although two opposing conceptions are pitted against each other when it comes to establish a comprehensive rule of law governance, consensus prevailed. This chapter may have also explained the reluctance of some groups to detach themselves from their more controversial party members and showed that the East-West divide has rather limited power to shape outcomes. However, it has also shown that Central and Eastern European MEPs do not, alone, have the power to shape outcomes. In contrast, their power is reinforced by the logics of the intergovernmentalism and unanimity in the Council (Chaps. 6 and 7). Beyond partisanship, as illustrated in Sect. 5.4, political groups are in favour of safeguarding the rule of law at the supranational level through an EU Mechanism on democracy, the rule of law, and fundamental rights, which emulates to some extent the European Semester while strengthening the role of parliaments and experts. The mechanism puts forth a set of core elements of liberal democracy, which bring together both thin and thick understandings of the rule of law, with the former prevailing to a large extent. Opposed to such trends are parties from the ECR group as well as the radical right and the radical left, often divided, who represent a minority in the EP, but block decisions in the Council where their power is reinforced by the logics of the intergovernmentalism, as Chap. 6 shows.

References Braghiroli, S. (2015). An Emerging Divide? Assessing the Impact of the Euro Crisis on the Voting Alignments of the European Parliament. The Journal of Legislative Studies, 21(1), 96–114. Cheysson, A., & Fraccaroli, N. (2019). Ideology in Times of Crisis A Principal Component Analysis of Votes in the European Parliament, 2004–2019. CEIS Tor Vergata. Research Papers Series, 461, 17(5), 1–34.

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Dimitrovs, A., & Droste, H. (2002, December 30). Conditionality Mechanism: What’s in It? VerfBlog, 2020/12/30. EP debates from 2010 to 2020. EP, Resolution on the situation in Hungary, 16 February 2012, 2012/2130(INI)). EP, Resolution on the situation in Hungary, 16 December 2015, 2015/2935(RSP)). EP, Resolution on the situation in Hungary, 17 May 2017, 2017/2656(RSP)). EP, Resolution on the situation in Hungary, 10 June 2015, 2015/2700(RSP)). EP, Resolution on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded, 12 September 2018, 2017/2131(INL)). EP, Resolution on the rule of law and fundamental rights in Bulgaria, 8 October 2020, 2020/2793(RSP)). EP, Resolution on the rule of law in Romania, 13 November 2018, 2018/2844(RSP)). EP, Resolution on the rule of law in Malta, 15 November 2017, 2017/2935(RSP)). EP, Resolution on the situation in Poland, 13 April 2016, 2015/3031(RSP)). EP, Resolution on the proposal for a Council decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law, 17 September 2020 (COM(2017)0835 – 2017/0360R(NLE)). EP, Resolution on the conflict of interest of the Prime Minister of the Czech Republic, 10 June 2021, 2021/2671(RSP)). EP, Resolution with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights, 25 October 2016, 2015/2254(INL)). EP, Report on the establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights (2020/2072(INL)). Garrett, G., & Tsebelis, G. (1996). An Institutional Critique of Intergovernmentalism. Intrenational Organization, 50(2), 269–299. Héritier, A., Meissner, K. L., Moury, C., & Schoeller, M. G. (2019). European Parliament Ascendant Parliamentary Strategies of Self-Empowerment in the EU. Palgrave Macmillan. Herman, L. E., Hoerner, J., & Lacey, J. (2021). Why Does the European Right Accommodate Backsliding States? An Analysis of 24 European People’s Party Votes (2011–2019). European Political Science Review, 13, 169–187. Hix, S. (2001). Legislative Behaviour and Party Competition in the European Parliament: An Application of Nominate to the EU. Journal of Common Market Studies, 39(4), 663–688. Hix, S., & Noury, A. (2009). After Enlargement: Voting Patterns in the Sixth European Parliament. Legislative Studies Quarterly, 34(2), 159–174. Hix, S., & Hoyland, B. (2011). The Political System of the European Union. Palgrave Macmillan.

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Hooghe, L., Marks, G., & Wilson, C. J. (2002). Does Left/Right Structure Party Positions on European Integration? Comparative Political Studies, 35(8), 965–989. Kelemen, D.  R. (2020). The European Union’s Authoritarian Equilibrium. Journal of European Public Policy, 27(3), 481–499. Kreppel, A. (2000). Rules, Ideology and Coalition Formation in the European Parliament. European Union Politics, 1(3), 340–362. Laffan, B. (2019). The European Parliament in Turbulent Political Times: Concluding Reflections. Journal of European Integration, 41(3), 405–416. Meijers, M.  J., & Van Der Veer, H. (2019). MEP Responses to Democratic Backsliding in Hungary and Poland. An Analysis of Agenda-Setting and Voting Behaviour. Journal of Common Market Studies, 57(4), 838–856. Merkel, W. (2004). Embedded and Defective Democracies. Democratization, 11(5), 33–58. Moller, J., & Skaaning, S.  E. (2014). The Rule of law. Definitions, Measures, Patterns and Causes. Palgrave Macmillan. Norocel, C.  O., & Baluta, I. (2021). Retrogressive Mobilization in the 2018 “Referendum for Family” in Romania. Problems of Post-Communism. https:// doi.org/10.1080/10758216.2021.1987270 Otjes, S., & van der Veer, H. (2016). The Eurozone Crisis and the European Parliament’s Changing Lines Of Conflict. European Union Politics, 17(2), 242–261. Ripoll Servent, A. (2019). The European Parliament After the 2019 Elections: Testing the Boundaries of the ‘Cordon Sanitaire’. Journal of Contemporary European Research, 15(4), 331–342. Sadurski, W. (2019). Poland’s Constitutional Breakdown. Oxford University Press. Sargentini, J., & Dimitrovs, A. (2016). The European Parliament’s Role: Towards New Copenhagen Criteria for Existing Member States? Journal of Common Market Studies, 54(5), 1085–1092. Schmidt, V.  A. (2020). Europe’s Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone. Oxford University Press.

CHAPTER 6

The Rule of Law Debate in the Council: Weak Consensus and Impossible Deliberation and Persuasion in Times of Dissensus and Contestation

6.1   Introduction How are member states dealing with rule of law concerns in the Council? While the rule of law has occupied a central place on the agendas of the Commission (see Chap. 4) and the Parliament since 2010 (see Chap. 5), the Council only sporadically addressed this issue during the seventh term of the EP (2009–2014). Whereas the EP sought to raise awareness on democracy, the rule of law, and fundamental rights, during this time, the Council has remained silent on such topics, arguably because the beginning of 2000s was largely dominated by debates about the redesign of the European economic governance both in the Council and in the European Council (Schmidt, 2020). Yet in 2013, the representatives of Germany, the Netherlands, Finland, and Denmark, whose governments were also in favour of strict conditionality in economic governance (Chap. 7), invited the Commission to reflect on strengthening the capacity of the EU “to react swiftly and effectively to ensure compliance with its most basic principles” (Letter, 6/03/2013). However, despite their willingness to see such topics on the agenda, in the early 2000s, successive presidents-in-­ office of the Council, when invited to attend debates in the EP on the situation in EU member states, stated one after another that they were not © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_6

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able to express the position of their institution, as illustrated below in the statement by Vytautas Leškevičius (President-in-Office of the Council, during the Lithuanian Presidency) who said in 2013: I am willing to listen to the views which you wish to convey on this issue. However, I am afraid I am not in a position to take a position on behalf of the Council simply because the Council has not discussed the internal situation in Bulgaria and therefore has nothing to say on this issue”, stressing that “It is rather rare for the Council to hold discussions that touch upon the internal situation of any of its Member States. (EP, 13 July 2013)

In the beginning, member states’ governments that held the Council’s rotating presidencies had been very reluctant to include the rule of law on their six-month agendas. Some presidencies have been reasonably disposed to act as agenda setters in shaping the rule of law policy (Interview 11, German diplomat, 26 August 2020).1 Others have only reluctantly accepted to do so at the request of other member states or of the Commission (Chap. 4). Because the action taken by the Commission in dealing with the situation in Hungary did not prevent the erosion of the pillars of democracy in the country after 2010 as debated in the EP (Chap. 5), and because Poland has followed a similar path since 2015, eventually the Council could no longer avoid the concerns over the rule of law. In 2014, member states proposed establishing a Rule of Law Dialogue (RLD) in the Council—an intergovernmental idea supported by Frans Timmermans, at that time Dutch Minister of Foreign Affairs. The RLD was a very modest step, rather a “façade tool”, and a source of disappointment for many member states (Waelbroeck & Oliver, 2017). The topic was subsequently put on the agenda of the ministers as part of the newly established rule of law dialogue (RLD) and also as a consequence of the decision of the Commission in December 2017 to trigger Article 7 TEU against Poland and the vote of the EP in September 2018 to trigger Article 7 against Hungary. Yet if member states here managed to overcome resistance to establish a more supranationalised yet soft annual RLD, Article 7 TEU, in contrast, as 1  It should be mentioned that putting the rule of law on the agenda of the Council, was not only a question of willingness of the country holding the presidency. It was also a question of acceptability by all the other delegations to see the issue (for example Article 7 TEU) on the Council’s agenda. Although there is no vote on the agenda of the Council, a point is accepted unless there is no objection from the delegations of other member states. If there is objection in COREPER, the point is not included.

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described by one civil servant from the SecGen of the Council (Interview 12, civil servant, SecGen Council, July 2021), from the very beginning was seen as “the chronical of a tragedy foretold”, and a proof of the manifestation of the impossibility of bringing together 22 member states to reach consensus and “exit” this procedure. According to intergovernmentalists, member states shape European policymaking according to their institutional traditions and national preferences, which are often incompatible and driven by domestic concerns (Moravcsik, 2018). States bargain in the Council to reach concrete agreements. From this perspective, EU integration is the result of successive negotiations in which member states threaten to veto decisions, when their interests are at stake, or if a decision touches upon their “core state powers” (Genschel & Jachtenfuchs, 2016). According to constructivists, aside from bargaining, member states’ representatives reach agreements through socialisation, learning, and persuasion (Lewis, 1998). De facto, EU integration has been shaped not only by credible threats to veto proposals but also by consensual decision-making based on deliberation, whereby ministers, diplomats, and officials put forward their best arguments, acting as problem solvers “to persuade each other, to re-evaluate positions, to promote compromise and brainstorm together to develop new policies” (Moravcsik, 2018, p. 1657). This chapter shows that both deliberation and persuasion in the Council have been hindered by contestation and dissensus which cast a shadow over the constructivist arguments (Lewis, 1998) according to which the European élite manage to embrace a European perspective rather than a national one (Bulmer & Lequesne, 2013). It shows that in the rule of law debate, both soft and hard policy tools are highly disputed (Table 6.1). Table 6.1  Policy tools and outcomes in the Council Policy tools

Outcome

Power

Ideas

Soft tool Rule of law dialogue Hard tool Article 7 TEU

Incremental institutional change Inertia

Consensus of 26 member states

Partial supranationalisation of the rule of law assessment

Increased contestation and dissensus Inability to reach consensus among 22 member states No exit

Legalisation of the debate

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Since the beginning of the rule of law debate in the 2010s, three groups of countries have emerged in the Council. Unsurprisingly, the more exposed a country is to rule of law criticism (Chap. 5), the less inclined it is to support developments at the EU level. Drawing on the core concepts of this book—consensus, contestation, and dissensus—different roles emerge here including dissenters, that is, member states unwilling to compromise; contesters, that is, member states who voice contestation without departing from the core principles; and consenters, that is, member states who seek to bridge the conciliable positions of the contesters and the irreconcilable views of the dissenters. These three categories overlap to some extent with Börzel’s conceptualisation of three different strategies: first, pace-setting, meaning “actively pushing policies at the European level, which reflect a member state’s policy preference and minimize implementation costs”; second, foot-dragging, that is, “blocking or delaying costly policies in order to prevent them altogether or achieve at least some compensation for implementation costs”; and third, fence-sitting, meaning “neither systematically pushing policies nor trying to block them at the European level but building tactical coalitions with both pace-­setters and foot-draggers” (Börzel, 2002, p. 196). This chapter shows that the rule of law agenda is driven by the EU15, acting in different coalitions, including Benelux, the “frugal four” with the support of Germany, and the Franco-German duo, with uneven support from Southern Eastern European member states joining some or all of these alliances at different times. The pace-setters or consenters “are always the same”, as a diplomat declared for this book, “they support the Commission”, “they are the ones asking questions in the Council” although the many years of debates without concrete results have caused “weariness”, and some wish for “a pause” or time to “wait and see”, as if waiting since 2010 was not long enough (Interview 7, Belgian diplomat, 23 July 2021). The category of fence-sitting member states or the contesters is not a stable one. It includes delegations who are neither systematically pushing policies nor trying to block them at the European level but building tactical coalitions with both pace-setters and foot-draggers. As this chapters shows, in this category, we often find member states from Central and Eastern Europe if the debate is related to Article 7 TEU, and others from Southern Europe, for example, when Regulation 2020/2092 was at stake

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(see Chap. 7). The dissenters, in contrast, contest the legality of actions and tools. Against this backdrop, some direct participants to meetings in COREPER or in the Council formations were interviewed for this book, and when asked about deliberations in the Council, they reported either “polite discussions” (Interview 7, Belgian diplomat, 23 July 2021) or clashes of irreconcilable views, with both methods ultimately unsuccessful, as member states’ positions remained unchanged.2 Empirically, this chapter starts by presenting member states’ coalitions on rule of law issues (Sect. 6.2), then scrutinises the establishment and the use of the RLD in the Council (Sect. 6.3), and, finally, seeks in a modest way the hermetic inner workings of the hearings conducted under the Article 7 TEU procedure (Sect. 6.4).

6.2   Member States’ Coalitions on the EU’s Rule of Law Policy By deciding to shape or prevent the establishment of new rule of law policy tools at the EU level, member states allegedly agree/disagree to delegate and pool power at the supranational level to solve co-ordination problems or compliance problems (Moravcsik, 2018). As in the EP, coalitions among member states are not fixed. In the Council and in the European Council they shift from issue to issue, depending on a country’s size, the length of its membership, geographical position, date of accession (old/new member states), or ideological preferences. Historically, certain member states tend to vote together. While there are geographical patterns, geography alone does not explain everything. Scholars have shown that, depending on the issue at hand, right/left cleavages actually explain more than geography alone (Mattila, 2008) and that the “old vs new member state” dichotomy is more complex than it looks (Lequesne, 2014). The left/right cleavage plays a key role in debates about the market. What brings member states together is instead a shared political culture and similar preferences and interests. Since the accession of a large number of new member states, some scholars have also disputed the 2  The context of COVID-19, with remote working in EU institutions and travel restrictions impeded member states representatives at the political or administrative levels from meeting in person, posing a considerable obstacle for diplomats to reach consensus, as explained by people from the SecGen or attending COREPER meetings (Interview 12, civil servant, SecGen Council, July 2021).

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cleavage of old versus new member states (Thomson, 2009), arguing that the accession of 13 member states since 2004 only slightly altered coalition patterns in the Council, as the “not so new anymore” member states rarely vote en bloc (Zaun, 2020), but rather join existing coalitions. In recent years, however, Eastern European member states in general and the Visegrad group in particular have become more assertive in blocking decisions in sensitive policy areas such as migration. The rule of law debate is another illustrative example. Within the Council, the EU’s rule of law policy is driven by the group of pace-setters or consenters, usually bringing together countries which do not perceive the emerging rule of law policy as a “threat” for them. This group includes old EU member states like Belgium and Germany which proposed the annual rule of law evaluation, supported by the rest of Benelux (Netherlands and Luxembourg). The agenda has also been driven by the so-called “frugals”—the governments of the Netherlands, Austria, Finland, Sweden, Germany with the support of Italy—as they have been very active in promoting the idea of strengthening the rules and sanctioning deviations from the values enshrined in the treaties by cutting EU funding. France and Germany have sought to act as facilitators, to reach consensus: Germany, on the one hand, with regard to Regulation 2020/2092 (Chap. 7) during its presidency, and France with regard to Article 7 TEU.  Yet, the role of Germany is rather ambiguous, observers interviewed for this book deplored Angela Merkel’s constant support to Viktor Orban. Concerning France, this ambition of Emmanuel Macron is not new. In a debate with his electoral rival Marine Le Pen during the French presidential electoral campaign, Macron discussed the delocalisation of Whirlpool (a French factory belonging to an American group) to Poland, stating: “three months after my election there will be a decision on Poland. I put my responsibility on the table” (Agence Europe, 17/05/2017). This decision did not materialise, however, and it seems that prior to the Russian invasion of Ukraine the French government was working on an outcome with regard to Article 7 TEU, with an eye to the French Presidency of the Council in 2022, as one diplomat declared in a research interview for this book (Interview 7, Belgian diplomat, 23 July 2021). Faced with the Council’s inability to find a way out with regard to Article 7 TEU, member states have often adopted declarations or sent out letters to the presidents of the main EU institutions. For example, the decision of the Hungarian Parliament in June 2021 to ban the portrayal of homosexuality and sex reassignment in school education material and TV

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programmes addressed to people under 18 years of age has sparked new debates among member states delegations (EuroNews, June 2021). Two initiatives emerged. One, led by Belgium, supported by Benelux, and followed by 17 member states, condemned the Hungarian legislation in a letter as “a blatant form of discrimination and stigmatisation of the LGTBTIQ people based on sexual orientation, gender identity and expression”, which “clearly violates the freedom of expression enshrined in the EU’s Charter of Fundamental Rights”. As declared by the Belgian Minister for Foreign Affairs at the time, Sophie Wilmès, Belgium took the lead in raising the issue at the General Affairs Council, together with Benelux, underlining the fact that “a value based Union is not a menu à la carte” and that “we have a collective responsibility to protect the rights of all EU citizens”, “the duty to speak out” and “respond when these rights and values are undermined”. Although the ball was in the Council’s court, ironically the signatories of the letter invited the Commission (again), as guardian of the treaties, “to use all the tools at its disposal to ensure compliance with European law, including recourse to the Court”. This letter was signed by Denmark, Finland, Sweden, Netherlands, and Austria (the “frugals”), France and Germany, Luxembourg (as member of Benelux), Spain, Italy, Greece, Portugal, Cyprus, and Ireland as well as the three Baltic states— Estonia, Latvia, and Lithuania. Reminiscent of the declaration adopted by the 14 member states against Austria in 2000s, all EU15 states joined this declaration, supported by only four member states who joined after 2004. It should be mentioned that Italy, Greece, Austria, Cyprus, and Portugal decided to join the declaration only after the European Affairs Council in June 2021. According to a diplomatic source, because Portugal held the presidency of the Council, it was rather reluctant initially, invoking the duty of neutrality. Yet in an interview, a Belgian source declared that the Portuguese Presidency felt at that time that Benelux was doing “too much” as they wished for a “calm presidency” (Interview 7, Belgian diplomat, 23 July 2021). Another initiative on the same Hungarian piece of legislation was launched in parallel, taking the form of a joint letter promoted by the Spanish and Luxembourgish prime ministers (Pedro Sánchez and Xavier Bettel), and supported by the same 17 member states as above. The letter was drafted in defence of the LGTBTIQ community “on the occasion of the celebration of the International Lesbian Gay Bisexual and Transgender Pride Day the upcoming 28th June” expressing the signatories’

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attachment to common fundamental values, enshrined in Article 2 of the Treaty of the European Union. The declaration did not target Hungary specifically, nor did it mention Article 7 TEU. It was signed by 17 prime ministers and heads of state—Emmanuel Macron (France), Angela Merkel (Germany), Alexander De Croo (Belgium), Mark Rutte (Netherlands), Micheál Martin (Ireland), Mette Frederiksen (Denmark), Sanna Marin (Finland), Stefan Löfven (Sweden), Mario Draghi (Italy), Robert Abela (Malta), Kyriakos Mitsotakis (Greece), and Nikos Anastasiades (Cyprus)— and sent to the president of the European Council, to the president of the Commission, and to the president of the rotating presidency of the Council, then held by Portugal (EuroNews, June 2021). The only signatories from Central or Eastern Europe were Kaja Kallas from Estonia and Arturs Krišjānis Karin ̧š, from Latvia, later followed by Chancellor Sebastian Kurz of Austria. Against this backdrop, Viktor Orbán’s international spokesperson, Zoltan Kovacs stated that the action taken by the 17 member states was a “groundless offensive against Hungary”, as “the Hungarian law protects children’s rights and guarantees those of the parents, it does not apply to adults” (EuroNews, June 2021). As declared by Justice Minister Zbigniew on 17 December 2018, if both the Polish and the Hungarian governments have been inflexible on matters related to the functioning of the judicial systems, this was also because “yielding” to EU demands would “open the gate” “to the imposition of same-sex marriage, abortion on demand, and the euro currency in Poland” (Cadier, 2021, p. 14). Ultimately, it seems that the East-West divide is variable, with the East more divided than the West on some issues. Poland and Hungary have supported each other on rule of law issues in the Council. The Baltic states have joined some initiatives driven by the so called “friends of the rule of law”, yet they have been more reluctant in dealing with Article 7 TEU during their presidencies, as the next section will show. Bulgaria too, during its presidency, tried to avoid decisions on article 7 TEU and Romania was mandated by the Council to deal with technical issues rather than political aspects in the rule of law debate (see Chap. 7), also shown in the next section. Poland and Hungary have received support from Czechia and Slovakia (although the Visegrad Group is often divided on many other issues). Yet on Article 7 TEU, it would be misleading to cast the debates as a pure East-West divide. It is not only Eastern Europeans but also representatives from other member states that have remained silent or claimed “neutrality”, depending on the issue at stake and the context, like, for

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example, Spain, Slovakia, and Ireland, in a 2017 debate about Article 7 TEU vis-à-vis in Poland (Agence Europe, 17/05/2017).

6.3   The Annual Rule of Law Dialogue in the Council: A Belgo-German Initiative While some member states have been proactive in putting the rule of law on the agenda of the Council (despite the limitations of their approach), others have only reluctantly agreed to do so. Table 6.2 shows which member states put the rule of law concerns on the agenda during their presidency. After the launch of the Commission’s contested Rule of Law Framework (Chap. 4), in November 2014, during the Italian rotating presidency, the Council stated its intention to conduct a Rule of Law Dialogue (RLD) to be organised on a regular basis, once or twice a year, as a non-partisan political dialogue that would not infringe on the national identities or political and constitutional structures of member states (Agence Europe, 17/12/2014). From the onset, as stated in several  documents of the Council, the context of this dialogue was Article 2 TEU. Supported by many, including Frans Timmermans, then Dutch Minister of Foreign Affairs, the RLD was to some extent leant to be an alternative to triggering Article 7 TEU. The idea was supported by a large majority of member states, in particular all the fervent promoters of a purely intergovernmental Union who were of the opinion that such debates should not take place within or in dialogue with the Commission. Thus, on 16 December 2014, following the General Affairs Council (CAG) meeting in Brussels on ensuring respect for the rule of law, the Council and the member states committed themselves to establishing a dialogue among all member states “to promote and safeguard the rule of law in the framework of the

Table 6.2  The rule of law on the formal agenda of the Council Policy Tools

2014 2015 IT

RLD × Art 7 TEU Regulation 2020/2092

2016

2017

2018

2019

2021

LV LU NL SK MT EE BG AT RO FI HR DE ×

×

×

× ×

×

× × ×

× ×

× ×

×

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Treaties” (Conclusions of the Council of the EU, 16/12/2014). They underlined a series of principles, notably: objectivity, non-discrimination and equal treatment of all Member States; a non-partisan and evidence-based approach, without prejudice to the principle of conferred competences, as well as the respect of national identities of Member States inherent in their fundamental political and constitutional structures, inclusive of regional and local self-government, and their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security; this approach should be brought forward in light of the principle of sincere cooperation. (Conclusions of the Council of the EU, 16/12/2014)

The first RLD was held under the Luxembourg Presidency in November 2015, and the second in May 2016 under the Dutch Presidency. While establishing this tool created some expectations since it was conceived as an alternative to Article 7 TEU, as one diplomat stated, it was in fact nothing more than a “discussion forum”, and rather “disorganised”, since member states were very reluctant to criticise each other (Interview 7, Belgian diplomat, 23 July 2021). As explained by a civil servant from the Council who followed all the debates on this issue, each member state “was talking about something different” (Interview 12, civil servant, SecGen Council, 19 July 2021). It was neither a forum for deliberation nor persuasion, but a way to compensate the “deafening silence” of the ministers, at least as a façade. To compensate for unproductive discussions in the Council, the Dutch Presidency organised the RLD in the form of a seminar on the topic of “EU fundamental values, immigration and integration” on 2 February 2016 in Strasbourg. Drawing on documents, it appears that part of the discussion was about migration and the EU’s commitments, which was also a very hot topic on the agenda of EU institutions (Council of the EU, Presidency, 8774/16). Against this backdrop, and to give the Council a sense of the RLD’s content, the presidency suggested that the second iteration be structured around two points: first, the question: “What can member states do to ensure the respect for fundamental rights and rule of law in the context of integration?” and second, to gather member states’ experiences, “lessons learned or best practices to share on how to help refugees and migrants to integrate smoothly in the receiving societies and embrace fundamental values and rule of law”. The way in which the Dutch Presidency prepared the

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second RLD illustrates the room of manoeuvre each presidency has to give content to this instrument and to shape the agenda, but nevertheless also showing the very vague aims of the dialogue, even if debates in the EP about the deterioration of democracy, fundamental rights, and the rule of law were intense (see Chap. 6). The presidency announced in 2014 that the RLD should be revaluated in 2016. After two years and two iterations, under the Slovak Presidency (in the second half of 2016), ministers discussed the tool’s efficacy (or rather lack thereof) and proposed establishing it as an annual process, to review respect for the rule of law in member states, following a proposal from Didier Reynders, Belgium minister for foreign affairs, with the support of the German State Secretary Michael Roth. The third iteration of the annual RLD took place under the Estonian Presidency in the second half of 2017 on the topic of “Media pluralism and the rule of law in the digital age” (Council of the EU, 13609/17), on 17 October 2017, one day after the murder of Maltese journalist Daphné Caruana Galizia. Like the previous presidency, the Estonians organised an informal seminar with representatives from member states, EU institutions, the Agency for Fundamental Rights, the Council of Europe, journalism, media companies, civil society organisations, and academics who have underlined the role of a pluralistic, independent, and trustworthy media as a watchdog and guardian of democracy and the rule of law. In this framework, ministers agreed that a free media underpins effective democracy and exchanged “best practices on how to support journalists” and the roles that member states can play “to ensure that the media landscape remains pluralistic”, among other points (Council of the EU, 13609/17). The fourth RLD followed on 12 November 2018 during the Austrian Presidency (in the General Affairs Council) on the topic “Trust in Public Institutions and the Rule of Law”. Again, an informal expert seminar in Brussels on 11 July 2018 preceded discussions amongst the ministers. The seminar focused on the concept of trust as well as the factors put forward by the OECD to create trust. As at the General Affairs Council meeting on 15 November 2016, it was agreed to re-evaluate the RLD by the end of 2019 (Council of the EU, 14173/19, 19/11/2019). On 19 March 2019, Didier Reynders, the Belgian minister for foreign affairs  at that time, and Michael Roth, the German state secretary, both insisted on the need to systematise this annual procedure (EURACTIV, 19/03/2019) and proposed a new

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mechanism to be used in parallel with Article 7 TEU. Launching this idea, Reynders explained that a “very wide majority, more than 20 countries” support the establishment of a mutual evaluation mechanism (EURACTIV, 19/03/2019). According to the Belgo-German paper, the proposed mechanism was to focus on “the rule of law, including judicial independence, effective judicial protection and legal certainty”. In terms of “finalité”, the joint proposal emphasised that the mechanism “will not have any binding legal consequences” and will not allow for any sanctions against participating member states (EURACTIV, 19/03/2019). Finland took this proposal further during its presidency in the second half of 2019. Since the previous iterations of the RLD were limited to exchanges of views with a wide range of actors in informal high-level seminars, after five years, some member states now felt the need to move forward (also given the slow progress in all rule of law related issues on the agenda of the institution). After an exchange of views in the General Affairs Council (CAG), the presidency sent a questionnaire to the delegations. Drawing on the input received, the Finnish Presidency prepared draft conclusions (Council of the EU, 14173/19, 19/11/2019), arguing that there was a “wish for the dialogue to be stronger, more result-­oriented and better structured, for preparations for the dialogue to be more systematic, and for proper follow-up to be ensured”. It was proposed to conduct the rule of law dialogue in the Council on the basis of an annual rule of law report issued by the Commission, as an illustration of the willingness of member states to empower the institutions to play a role in solving member states’ problems with coordination and compliance (Moravcsik, 2018). In making this proposal, the Council invited the Commission to publish its annual report prior to the Council meetings and to involve member states in their elaborations. However, the role of the Commission was contested by the Hungarian and Polish governments who sought to minimise its role and its evaluations in the RLD in the Council, proposing to use their own assessments (Agence Europe, 6/11/2019). Their solution seemed to be more intergovernmentalism, even though it was obvious that a “turkey won’t vote for Christmas”, to borrow a metaphor from Grabbe (2014). The attempt of bridging supranational tools (i.e. the Commission’s annual report) and intergovernmental dialogues sparked a bone of contention. Poland and Hungary, both under Article 7 TEU, opposed the text proposed by the Finnish Presidency (Agence Europe, 19/11/2019), despite its efforts to reassure the delegations that said annual dialogue was above all a way of

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“uniting” member states around common values, as declared by the Finnish Minister for European Affairs Tytti Tuppurainen (Agence Europe 19/11/2019). The Hungarian and Polish representatives insisted on seeing a more explicit mention of “certain principles formerly recognised in other conclusions”, particularly “regarding aspects of respect for the political traditions, national identities and constitutional structures of the Member States” (Agence Europe 19/11/2019). Not only the Finnish Presidency but others before and after sought to satisfy the demands of the Polish and Hungarian representatives, according to diplomats interviewed for this book. But it was “never enough” to make their delegations agree (Interview 7, Belgian diplomat, 23 July 2021). Once the two governments’ cherished principles had been included in the draft conclusions of the Finnish Presidency, the Polish and Hungarian representatives restated their opposition to the role foreseen for the Commission in preparing annual reports on rule of law-related issues. Judit Varga, Hungarian justice minister, deplored that the proposal “gives such a big power for the European Commission without any kind of treaty basis,” stating also that [t]oo much political attention is around rule of law. Rule of law is a constitutional principle. It needs more legal attention and less political attention. (Financial Times, 29/09/2019)

The Hungarian government does not support the idea of authorising the Commission to carry out rule of law assessments. It was in favour of a dialogue allowing member states to provide their own assessments on the state of the rule of law. “Hungary would only allow to experts of member states to investigate its state of democracy, but not for EU specialists in Brussels” Judit Varga explained after the hearing in the LIBE committee in the European Parliament in September 2019 (EuroNews, 17/09/2019). As a way to satisfy their concerns, the draft conclusions of the presidency sought to soften the proposal by using a vague formulation, saying that the Council will “make use” of these reports. But the atmosphere in the Council was tense, as both Poland and Hungary were in the middle of hearings under the Article 7 TEU procedure, as discussed later in the chapter, and member states were also involved in very difficult discussions about Regulation 2020/2092 on linking conditionality, the rule of law, and the protection of the EU budget (see Chap. 7). There were three battles to fight for both Poland and Hungary: new tools, Article 7 TEU, and Regulation 2020/2092 (see Chap. 7). At two informal meetings on

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24 and 29 October 2019, experts examined the draft conclusions of the Finnish Presidency on the evaluation of the annual Rule of Law Dialogue. COREPER failed to reach a consensus on 6 November 2019 (Council of the EU, 13622/19). Ministers also failed to agree on this in the GAC. Because of the opposition from Poland and Hungary, the Finnish Presidency decided to propose conclusions by consensus among the 26 other member states. The first debate as part of the annual RLD was organised during the German Presidency in November 2020, in the midst of the negotiations of the Regulation 2020/2092 on the link between the EU budget, the rule of law, and conditionality (see Chap. 7). The first countries submitted to this exercise were Belgium, Bulgaria, Czechia, Denmark, and Estonia. As the German Presidency announced, as a new approach, the discussion was meant to take the form of “a high-level political dialogue”, and “constructive, forward-looking exercise, through which Member States can learn from one another”, offering “an opportunity for Member States to exchange best practices and comments”. Yet, despite these attempts, the RLD remained “a façade action” in terms of outcomes (Roth, 2011, p. 1).

6.4   Article 7 TEU Hearings in the Council: A Clear Expression of the East-West Divide? Debates in the Council about Article 7 TEU take place behind closed doors. However, some documents have been disclosed in response to the work of Prof. Laurent Pech and his information requests.3 When Article 7 TEU was triggered against Poland and Hungary, member states were reluctant to put it on the agenda of their Council meetings and there was a lack of shared interest for this procedure (Martin Michelot, Notre Europe 15/04/2019). Diplomats who followed the evolution of the EU since Maastricht recalled that Article 7 TEU was not designed to actually be used, but was meant to dissuade member states from violating the common values enshrined in the treaties. Those who designed this provision at Amsterdam envisioned Article 7 TEU being triggered by a situation such as “a military assault on democracy” rather than an irreconcilable clash between elected governments over democracy, fundamental rights, and the rule of law (Interview 7, Belgian diplomat, 23 July 2021). 3

 https://www.asktheeu.org/en/user/laurent_pech.

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During the Maltese Presidency in the first half of 2017, Frans Timmermans, himself a former minister and executive vice-president under the Juncker Commission, called on the Council to debate about the situation in Poland. As reported in the media, the presidency reluctantly added the point to the agenda in May 2017. Although it was not a specific point, the issue was addressed under “any other business” on 16 May 2017 with “no guarantees of Member States having the floor, nor of a decision” (Agence Europe, 16/05/2017). Despite this, 23 member states took the floor, encouraging the Commission to continue its work (Agence Europe, July 2017). In other words, while the Commission was seeking support in the Council (see Chap. 4), the Council sent the ball back to the Commission, with many in the Council fearing that triggering Article 7 TEU would be counterproductive. Beyond political considerations, legal aspects were also addressed, mainly about how to use Article 7 TEU. On 28 July 2018, the Council Legal Service (CLS) was preparing the ground by issuing a short description of the procedure. In September, during the Estonian Presidency, ministers reiterated their support for the Commission in its dialogue with Poland (Agence Europe, 26/09/2017), emphasising, however, that it was more appropriate to debate this issue in the Council rather than leaving the debate in the hands of the Commission alone, perhaps again as a compromise to the countries reluctant to enter into dialogue with the Commission. When Frans Timmermans insisted to see this point on the agenda of the Council, Estonia declared that the aim during its presidency was “not to take decisions” on this matter (Agence Europe, 7/072017). In contrast, Germany and the Netherlands asked to see the topic addressed. Article 7 TEU Hearings with Poland On 27 February 2018, during the Bulgarian Presidency, the Commission presented a reasoned proposal to trigger Article 7 TEU to the General Affairs Council, informing the Council of the situation on 17 April and 14 May 2018. In this context, the Bulgarian Prime Minister Boyko Borissov stated that he would not favour a vote of the Council on this matter. “If the procedure leads to a vote, we will have many sleepless nights” (Agence Europe, 18/01/2018), hoping therefore “to avoid this challenge”. Echoing an argument often invoked by the Hungarian representatives, Borissov added that he cannot say to his “Polish friends” that Poland does not respect the rule of law because, in his words, “it is so vague to

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measure” (Agence Europe, 18/01/2018). The Baltic states stated that they would vote against sanctioning Poland (Agence Europe, 17/03/2018), whereas in February, France and Germany adopted a joint declaration calling on the Council to move forward (Agence Europe 28/02/2018). The first hearing as part of Article 7 TEU was organised towards the end of the Bulgarian Presidency in June 2018. The permanent representatives of the member states (COREPER) agreed to a three-hour audition in Luxembourg on 26 May 2018, in the General affairs Council framework, which was seen as the last step before a vote (Agence Europe, 13/06/2018). The Commission was invited to identify the “most pressing issues for the first hearing” (Council of the EU, 9997/18). As a reminder, the hearing constitutes a necessary step of the process under Article 7(1) TEU which in its last sentence provides that “before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure” (Council of the EU, 9997/18). Considering this was the first time it organised a hearing under Article 7 TEU, the Council (Council of the EU, 9997/18) specified its modalities. The hearing was conceived as “an in-depth exchange” and “a peer review exercise”, in which the Commission could report on key areas and the country would have the opportunity to make an opening statement, followed by questions from the delegations and responses, observations, and remarks. As one civil servant from the SecGen stated, it was rather a “solemn procedure” (Interview 12, civil servant, SecGen Council, 19 July 2021). The topics proposed for the hearings were listed in the document circulated to the delegations as follows: (1) the retirement regime of current Supreme Court judges, including the First President, and regime for prolongation of judicial mandates; (2) the election regime of the members (judges) of the National Council, the premature termination of the mandates of the former members (judges); (3) the retirement regime of current Ordinary Court judges, the regime for prolongation of judicial mandate and the  situation of Ordinary Court judges already affected by the new retirement regime; (4) the Disciplinary regime, including the new autonomous disciplinary chamber in the Supreme Court; (5) the Extraordinary appeal procedure; (6) the situations of Court presidents already affected by the dismissal and appointment regime, and ultimately, the publication of the 2016 judgments and the recomposition of the Tribunal, including the procedure to appoint a new president (Council of the EU, 9997/18).

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During this unprecedented three-hour hearing, each party had the opportunity to talk, and representatives of 13 member states spoke (Agence Europe, 27/06/2018), always the same member states (Interview 7, Belgian diplomat, 23 July 2021). The Polish Minister for European Affairs, Konrad Szymanski, was optimistic in explaining his country’s position, arguing that in his view a second hearing would not be necessary. The hearing focused on the new measures taken by the Polish government, particularly the law on the Supreme Court and the retirement age for judges. Neither Italy nor Hungary spoke, while the German minister for European affairs stated that the new retirement regime for judges made the situation “ever more urgent” (Agence Europe, 19/09/2018). As declared by participants to said hearings, the atmosphere was calm, but the positions were irreconcilable (Interview 12, civil servant, SecGen Council, 19 July 2021). A majority of member states, including France, Germany, Belgium, Denmark, Sweden, Ireland, Luxembourg, Slovenia, Greece, Portugal, Spain, the Netherlands, and Estonia, demanded a second hearing, while Polish representatives claimed that the first hearing “had been exhaustive enough and insisted no new information was available” (Politico, 10/07/2018). Poland was supported by Hungary but not by the entire Visegrad group. In November 2018, during the Austrian Presidency, a second hearing of two and a half hours was organised, starting with the Commission which contended that the rule of law situation in Poland was deteriorating. In response to the Commission’s concern, the representatives of Poland reiterated their country’s position according to which the judicial systems were a competence of member states, drawing on Article 67 TFEU, and that all the disputed measures were adopted to increase the performance of judicial institutions in Poland. During the hearing, in response to the Commission, the Polish government listed the measures adopted to satisfy its recommendations. This first round was followed by a 45-minute presentation made by the Polish delegation, supported by a PowerPoint document, dealing with the issues discussed in the previous hearing, followed by a list of amendments adopted in response to the Commission’s recommendations and the rulings of the Court of Justice. During the presentation, reference was also made to the diversity of European standards, in theory and in practice, pointing out the diversity of models with regard to the election of judges, for instance. Once the protocol was established, each member state could address two questions, prepared in advance. As one diplomat said, member state

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representatives are in contact before the hearings and share their questions around to avoid repetition and make sure that all points are covered. During the second hearing, 13 delegations submitted 16 questions about guarantees protecting judges from political pressures (Luxembourg), the role of the National Judicial Council (Denmark), the recruitment of new judges at the Supreme Court (Germany, speaking also on behalf of France), the disciplinary proceedings against judges (the Netherlands), the retirement of judges (France, reiterating a question also addressed by Germany and Denmark), the replacement of the president of the Supreme Court (Portugal), the European Arrest warrant (Ireland), the distribution of competences between the National Judicial Council, the President of Poland and the Minister for Justice (Spain), about the pace of changes and the acceleration of procedures (Belgium), and about the role of the Polish president in the appointment procedure and the possible risk of political control over the behaviour of judges (Cyprus). Except for the presidency (Austria), which introduced the hearing and the modalities, a large majority of the EU15 spoke. Cyprus was the only new member state to ask a question, and all of the Eastern and Central European member states remained silent. In the end, there was no progress at all, as stated by Michael Roth after the meeting. Despite these discussions, the balance of power in the Council remained unchanged. The Commission demanded another hearing on Poland which took place in December 2018  in the framework of the General affairs Council. In neither case were the concerns alleviated. As a result, member states hoped to pursue the discussions in June during the Romanian Presidency of the Council (January–June 2019). In the Council, however, it was clear that it would be hard to reach the 4/5 majority (22 member states) required to record a threat of serious breach of the rule of law. Confrontational Article 7 TEU Hearings with Hungary The organisation of the hearings with Hungary was preceded by some questions of procedure, as Article 7 TEU was not triggered by the Commission but by the EP. Delegations questioned the role that the EP can play in hearings. The debate was postponed in order to clarify the procedure but also because, as one source declared, the Council was waiting for the decisions of the Court of Justice of the EU on the retirement age for judges in the case of Poland, and also for the infringement procedures related to the rule of law opened by the Commission against

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Hungary (Interview 7, Belgian diplomat, July 2021). On the other hand, the Hungarian government attacked the EP’s vote triggering Article 7 TEU in the Court of Justice, contesting the procedure and arguing that it was “political and non-objective”. Judit Varga, Hungarian justice minister, told the Financial Times (29 September 2019) that the so-called Article 7 TEU proceedings against Budapest were “absurd” and that a resolution of the case would be “timely”. The chief bone of contention was the voting modalities in the EP: if the EP had also included the abstention, the reasoned proposal of the EP would not have been adopted (Case C-650/18). The first hearing with Hungary took place on 12 September 2019, during the Finnish Presidency (Council of the EU, 12345/19). The presidency introduced the hearing informing the delegations that on 4 September 2019, the presidency trio—Finland, Croatia and Germany— had met the chairs of the LIBE committee of the EP, which asked for the opportunity to intervene in the Council. Because the procedure was not triggered by the Commission, the Hungarian representatives found themselves facing MEP Judith Sargentini (Greens/ALE), the rapporteur for the EP, accompanied by MEP Claude Moraes (S&D group). The EP pointed out the deterioration of the situation in Hungary since Article 7 TEU had been triggered one year earlier. The Hungarian representatives, in response, referred to a long note of more than 150 pages explaining their position. For the Hungarian delegation, the EP’s vote breached the rule of procedure and therefore the Article 7 TEU procedure lacked legal basis. As a matter of principle, the Hungarian delegation expressed its view with regard to EU integration, arguing that Hungary did not expect all member states to follow the same trajectory as far as EU values are concerned. Although the Commission shared the concerns of the EP with regard to the independence of the judiciary, in terms of procedure the Commission stated that it could not be a proxy for the EP (or act on its behalf) in the hearing, implying that member states rather than the Commission were supposed to initiate the discussion (Council, General Secretariat of the Council, 12345/19). During this hearing, the same old EU member states took the floor, joined by Cyprus, to address questions about media in Hungary (Sweden); about academic freedom and freedom of expression (Belgium, Spain, France, and Italy); about anti-corruption (the Netherlands and Germany); about judicial independence (Denmark); about disciplinary measures (France); about the “Stop Soros” campaign and the respect of human dignity in the measures adopted concerning immigrants, refugees, and asylum seekers (Luxembourg); and about the

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reform of administrative courts (Portugal). Hungary concluded its turn by stating that “only one conclusion was possible: there was no systemic risk of a Union’s value by Hungary” (Council of the EU, 12345/19), which left some delegations rather perplexed. Again, no new member states from Central and Eastern Europe took the floor. A second hearing of two hours took place on 10 December 2019 “on the independence of the judiciary and of other institutions and the rights of judges”; “on the freedom of expression” and on “academic freedom” (Council of the EU, 14402/19). Following the same protocol, after an introduction by the Finnish Presidency and introductory comments by Hungary, the Commission took the floor for its remarks followed by questions from 10 delegations, including 11 old member states (Belgium, Denmark, Germany, Spain, France, Ireland, Italy, Luxembourg, the Netherlands, Sweden, and Portugal) and Slovenia, the only one from Central and Eastern Europe. The hearings are ongoing although the rule of law is relegated to the background since the Russian invasion of Ukraine on 24 February 2022.  Two Different Styles and Irreconcilable Positions The documents of the Council tell little about the atmosphere during the hearings. Observers interviewed for this book argued that Poland and Hungary used different styles during the auditions: while the Polish delegations often drew on emotions and a spirit of “victimisation” during the hearings, Hungarian representatives more often put forth legal aspects and the question of legality. Both sought to convince all the other delegations that what they were doing by changing the functioning of the judiciary was similar to practices existing in other member states. Both used a confrontational, defensive, and uncompromising style (Cadier, 2021, p. 11), reluctant to engage in consensus-building, the Hungarians nevertheless being more prone to dialogue than the Poles (Interview 12, civil servant, SecGen Council, July 2021). It seems that Poland was not able to get support in the Council apart from Hungary, Malta, Slovenia, or Slovakia. This was for at least two reasons: first, the PiS government “de-prioritised” its relations with Germany, a country that members of the party and intellectuals both depicted as a “cultural hegemon” (Cadier, 2021, p. 12). Jaroslaw Kaczynski, PiS president, had argued on many occasions that German interests are against Polish interests, and the anti-German rhetoric has been widely disseminated, often with references to historical aggressions (Cadier, 2021,

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p. 14). Relations with France also deteriorated, in particular after the decision of the PiS government to cancel a contract for armaments which the previous Polish government had negotiated (Cadier, 2021, p.  13). The PiS government instead sought support in its relations with the UK (before Brexit) and with other Central and Eastern European countries. A second reason for the difficulty to bridge positions lay in the PiS government’s decision to replace diplomats in Brussels with loyal staff (Interview 12, civil servant, SecGen Council, July 2021). Analysing the impact of populist governments on the bureaucratic autonomy of career diplomats in Poland (and in Italy and Austria), Christian Lequesne has underlined the importance of this change. The PiS sees diplomats as “enemies” because their mission is precisely to negotiate compromises with other member states (Lequesne, 2021), whereas the party seeks the opposite: confrontation. They do not need “mediators” to bridge the gaps between different views (Scharp, 2019). In other words, PiS tended to resort to “undiplomatic diplomacy” (Cadier, 2021, p. 1), both in terms of discourse and practice (Destradi et  al., 2021). Changing the diplomatic staff in Brussels has had a consequence on Polish relations with the European institutions and on the country’s ability to reach compromises, as stated by a civil servant from the secretariat general of the Council (Interview 12, civil servant, SecGen Council, July 2021). The case of Hungary was slightly different, perhaps because of the links between Fidesz and the EPP leaders in the Council. Hungary’s relationship with Germany did not deteriorate, not only because Viktor Orbán and Angela Merkel both belonged to the EPP until 2019 but also, according to critics, for “three reasons: Audi, Mercedes and BMW” as summarised by Péter Márki-Zay (444hu, 11/11/2021), leader of the movement Hungary for All (Mindenki Magyarországa Mozgalom, MMM). Hungary’s relationship with France was more tense considering that in the 2019 elections, Emmanuel Macron campaigned against populists in Europe. Yet in the Council, each debate was “a political battle” (Interview 12, civil servant, SecGen Council, July 2021), and with enormous fighting strength (Interview 7, Belgian diplomat, 23 July 2021). Like the Polish government, Viktor Orbán replaced diplomats, reappointing a series of lawyers, seeking a “serious break with the traditions of Hungarian foreign policy thinking and foreign policy management”. He often stressed the importance of loyalty, claiming that diplomats cannot be “world citizens”, but are defenders of the “the will of the people” (Visnovitz & Jenne, 2021, p. 10). As for substance, the Hungarian representatives framed all the issues at stake from a legal and legalistic perspective, using, in a

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selective manner, provisions existing in other member states to legitimise domestic measures. However, as observers in the hearings declared, some examples were so “old” they had not been referenced “since Napoléon”, as one civil servant in the SecGen ironically stated (Interview 12, civil servant, SecGen Council, July 2021). As an illustration of the confrontational character and also of the ability of the Hungarian delegation to make its points, one diplomat from an old member state stated that in some auditions, ironically, their impression was that it was the Hungarian government questioning member states on their practice and not the other way round (Interview 7, 23 July 2021). The very legalistic approach made for difficult discussions during the hearings, while some member states’ representatives—both at the ministerial and diplomatic level—believed that in the end, only the Court of Justice of the EU would be able to shed light on the matters under discussion.

6.5   Conclusion The chapter sought to understand how member states are dealing with rule of law concerns in the Council. To do so, it examined the debate from two angles: the establishment of an intergovernmental tool, called the Rule of Law Dialogue, and the hearings as part of Article 7 TEU. With regard to the RLD, while member states tended to agree on the establishment of this intergovernmental tool, they clashed over moves to empower the Commission to deal with “core states’ power”. The reform of the RLD to increase the role of the Commission was supported by 26 member states, excluding Poland and Hungary. For them supranationalisation is no longer an option to solve problems of coordination and compliance among member states, and the EU is seen as a “threat” to their sovereignty and values (Cadier, 2021, p. 9). On the other hand, the hearings as part of Article 7 TEU set the group of pace-setters or consenters (Belgium/Benelux, Germany, the Netherlands, Finland, Austria and Sweden, as well as France) in opposition to the two foot-draggers or dissenters (Poland and Hungary) with a more variable group in between of fence-sitters (silent contesters), whose position changes over time depending on the issues at stake. The hearings about Article 7 TEU in the Council seem to oppose 13 active old member states against a silent group of Central and Eastern European countries, as an illustration of the East-­ West divide. In the hearings, Poland and Hungary could not only count on the support of the V4 (including Czechia and Slovakia, despite divisions on other issues), but also on the tacit or explicit support of Central

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and Eastern European countries. Contestation and dissensus in the Council hindered deliberation and persuasion, due to the confrontational style of the dissenters. The use of legal arguments and comparative law in a selective manner did not lead to persuasion either, as experts, diplomats, and political actors felt that the legal approach put forth by the Hungarian delegation in the Council needed a legal response, from the Court.

References Börzel, T. A. (2002). Pace-Setting, Foot-Dragging, and Fence-Sitting: Member State Responses to Europeanization. Journal of Common Market Studies, 40(2), 193–214. Bulmer, S., & Lequesne, C. (2013). Member States of the European Union. Oxford University Press. Cadier, D. (2021). Populist Politics of Representation and Foreign Policy: Evidence from Poland. Comparative European Politics, 19, 703–721. Council of the EU. 16/12/2014; 16/05/2016, 8774/16; 13609/17; 14173/19, 19/11/2019; 13622/19; 12345/19; 14402/19. Council of the Union. (2019). Presidency Conclusions – Evaluation of the Annual Rule of Law Dialogue, 14173/19, 19/11/2019. Destradi, S., Cadier, D., & Plagemann, J. (2021). Populism and Foreign Policy: A Research Agenda (Introduction). Comparative European Politics, 19, 663–682. EuroNews. (2019, September). Article 7: EU Grills Hungary Over Rule of Law Concerns. EuroNews. (2021, June). Macron, Merkel and 15 Others EU Leaders Defend LGTB Rights Amid Row Over New Hungarian Law. Financial Times. (2019, September). Hungary Optimistic Over Swift End to ‘Absurde’ EU Rule-pf-Law Row. Genschel, P., & Jachtenfuchs, M. (2016). More Integration, Less Federation: The European Integration of Core State Powers. Journal of European Public Policy, 23(1), 42–59. Grabbe, H. (2014). Six Lessons of Enlargement Ten Years On: The EU’s Transformative Power in Retrospect and Prospect. Journal of Common Market Studies, 51(1), 40–56. Interview 11, German Diplomat, 26 August 2020. Interview 12, Civil Servant, SecGen Council, July 2021. Interview 7, Belgian Diplomat, 23 July 2021. Lequesne, C. (2014). Old Versus New. In E. Jones, A. Menon, & S. Weatherill (Eds.), The Oxford Handbook of the European Integration (pp.  257–278). Oxford University Press.

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Lequesne, C. (2021). Populist Governments and Career Diplomats in the EU: The Challenge of Political Capture. Comparative European Politics, 9(6), 779–795. Lewis, J. (1998). Is the “Hard Bargaining” Image of the Council Misleading? The Committee of Permanent Representatives and the Local Elections Directive. Journal of European Public Policy, 36, 479–504. Mattila, M. (2008). Voting and Coalitions in the Council After the Enlargement. In D.  Naurin & H.  Wallace (Eds.), Unveiling the Council of the European Union. Games Governments Play in Brussels (pp. 23–36). Palgrave. Moravcsik, A. (2018). Preferences, Power and Institutions in 21st-Century Europe. Journal of Common Market Studies, 56(7), 1648–1674. Roth, K. (2011). A Facade of Action. The Misuse of Dialogue and Cooperation with Rights Abusers. Human Rights Watch. World Report. Scharp, P. (2019). Diplomacy in the 21st Century A Brief Introduction. Routledge. Schmidt, V.  A. (2020). Europe’s Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone. Oxford University Press. Thomson, R. (2009). Actor Alignments in the European Union Before and After Enlargement. European Journal of Political Research, 48(6), 756–781. Visnovitz, P., & Jenne, E. K. (2021). Populist Argumentation in Foreign Policy: The Case of Hungary Under Viktor Orbán, 2010–2020. Comparative European Politics, 19(6), 683–702. Waelbroeck, M., & Oliver, P. (2017). La crise de l’état de droit dans l’Union européenne: Que faire? Cahiers de droit européen, 53(2), 299–342. Zaun, N. (2020). Fence-Sitters No More: Southern and Central Eastern European Member States’ Role in the Deadlock of the CEAS Reform. Journal of European Public Policy, 29(2), 196–217.

CHAPTER 7

The European Council’s Role in Day-to-Day Decision-Making: Increasing the EU’s Authority Through a General Regime of Conditionality (Regulation 2020/2092)?

7.1   Introduction Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget is the most recent policy tool to complement the EU’s rule of law policy examined in this book (Louis, 2021). Adopted in December 2020 by the Council and the Parliament on the proposal issued by the Commission in May 2018, it subjects the allocation of EU funds to the observance of the principles of rule of law (Hillion, 2021). The scope of the Regulation was disputed from the outset. Initially centred on the respect for the rule of law, this piece of legislation underwent a major shift, becoming a Regulation about the EU’s budget, certainly with a connection to the rule of law, but focused above all on the sound management of the budget and its protection. What happened? And why? This chapter examines this change by analysing the process through which went the idea of linking EU funds to respect for the rule of law, between May 2018 and December 2020, as well as the outcome of these developments. In order to understand the upshot of this Regulation, I argue that dissensus over the rule of law constrains the EU’s capacity to act, both within each EU institution and between them; it also determines who governs, who manages to translate ideas into concrete policy tools, and has © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_7

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implications for the polity and modes of governance of the EU. Dissensus also impacts how EU institutional actors shape the EU’s rule of law policy. In this context, “how” refers to understandings underpinning the reconfiguration of the principle at the EU level. Unsurprisingly, the issues at stake were framed differently by the main EU institutional actors. Debates revealed the increased polarisation of views and contestations over how to safeguard the rule of law at the supranational level, in terms of legality, control, consent, and substance. On the one hand, the EP sought to confer a substantive understanding to the rule of law and expand the scope of the Regulation. In contrast, debates in the Council focused on both technical and political aspects for over a year, the Council Legal Service (CLS) raising doubts about the Regulation’s legality. The Regulation’s raison d’être and its legal basis divided legal experts and member states’ delegations. Whereas the EP sought to expand its scope (substance) and the Commission to strengthen its supranational decision-making process (control), the strongly divided Council framed the issues through a legal lens (legality), focusing on technical features while waiting for the European Council to decide on the political aspects (control). On the other hand, whereas the EP managed to overcome its divisions (see Chap. 5), member states at the reins of the rotating presidency of the Council sought to avoid the issue entirely (as well as the ones related to Article 7 TEU). The Romanian Presidency of the Council in the first half of 2019 managed to address the technical aspects of the Regulation. However, moving from the technical discussions to more political ones took more than a year, until the German Presidency in the second half of 2020 and two European Council summits in July 2020 (Politico, 2020) and December 2020. While the EP managed to go beyond its internal divisions, thus increasing its institutional power and discursive cohesion, in contrast, the Council remained strongly divided (see Chap. 6), mirroring the cleavages which also shaped outcomes in the EP and were reflected in the positions of national parliaments. Yet, whereas dissenters in the EP remained rather marginalized, in the Council they had the power to oppose decisions, empowered by the logics of intergovernmentalism (Kelemen, 2020, p. 484). Because of intense political, technical, and legal discussions within the Commission, the EP, and the Council, the outcome was to a large extent determined by the European Council, which instructs the Council and the Commission and limits the EP’s room for manoeuvre, as predicted by the new intergovernmentalism (Bickerton et al., 2015).

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The growing role of the European Council in day-to-day decision-­making raises fundamental questions about the independence of the Commission and the intrusive role of the European Council in the ordinary legislative procedure. Through the lens of the new supranationalism, in some instances, the Commission executes indeed the European Council’s will without attempting to overstep its mandate (“obedient Commission”), while in others, it promotes its own preferred solutions (“runaway Commission”). In yet other cases, the European Council and the Commission complement and strengthen each other’s initiatives (“mutually reinforcing partnership”) or compete in agenda setting, without one clearly dominating the other (“agenda setting competition”) (Bocquillon & Dobbels, 2014). Because of heightened contestation and dissensus within each institution—largely overcome in the EP, but vivid in the Council—the outcome of the Regulation is path-dependent, rooted in the legal and economic foundations of the EU, as an illustration of institutional layering. At the end of the process, in December 2020,  actors who hoped to see a Regulation allowing the EU to safeguard the rule of law in member states expressed their disappointment, as the chapter shows. Yet, beyond a certain level of deception within some EU institutions, the Regulation establishes a general regime of conditionality for the protection of the Union’s budget which strengthens the EU’s authority and power of enforcement. It also spells out the rule of law, providing a definition which draws on the intellectual traditions of member states as well as on the jurisprudence of the Court of Justice. As the chapter shows, to help reach a consensus, the recital of the Regulation provided a modest substantive understanding of the rule of law, while the body of articles contained a rather thin understanding and a closed list of possible breaches of rule of law principles. Ultimately, because of irreconcilable positions in the Council and the European Council, EU institutional actors introduced a hybrid decision-­ making process allowing measures to be taken when breaches of the principles of rule of law affect or seriously risk affecting the sound financial management of the Union budget. The decision-making framework established by the Regulation involves the Commission and the Council, with a limited role for the EP, in a hybrid structure of intergovernmentalism and supranationalism. However, and this is new, it foresees in Recital 26, arguably as another consequence of dissensus, a role for the European Council at the top of the institutional architecture it created. Recital 26 introduces an “emergency brake”, which exceptionally allows concerned member states to refer the matter to the European Council. All in all, I

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conclude, the EU’s rule of law governance has shifted from soft tools to hard tools and to more integration. Drawing on interviews with actors who participated in drafting this Regulation, as well as on content analysis,1 the chapter examines the back-­ and-­forth between power and solutions within and among each institutional arena. Section 7.1 focuses on the political ambitions of the Commission. Section 7.2 explores the legal concerns raised by the CLS and member states’ delegations. Section 7.3 looks at the consensus/dissensus nexus in national parliaments, which mirror the polarised views also expressed in the EP.  Section 7.4 examines the interplay between the Council and the European Council. Section 7.5 shows who got what and how.

7.2   A Political Proposal Initiated by a Political Commission: Towards Another Article 7 TEU? The proposal of the Commission for a regulation linking the EU budget and the respect of the rule of law cannot be dissociated from the context in which it emerged. On the one hand, since the inception of the Eurozone crisis, a new culture of conditionality championed by Angela Merkel was dans l’air du temps; on the other hand, the proposal came eight years after heated debates in the EP (see Chap. 5) about the EU’s inaction when the common values enshrined in Article 2 TEU are violated by member states. Mainstreaming Conditionality to Bolster the EU’s Authority: A Divisive Idea “dans l’air du temps” in European Capitals Conditionality is not a new principle of governance. It is used by several international organisations and federal systems to foster compliance, encourage reforms, and implement policies. The term is often associated with the idea of sanctions or rewards (financial “carrots”) for the implementation of specific measures (Baraggia & Bonelli, 2021, p. 10). Since the beginning of the 1990s, different forms of conditionality have been introduced: political conditionality, related to EU accession (Article 49), economic conditionality linked to the EU’s economic governance, 1  Including the Commission’s proposal, the positions of the co-legislators, debates in the EP and its positions, Council documents and the conclusions of the leaders in the European Council.

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and the Stability and Growth Pact (SGP). Other forms are attached to structural funds as part of the Cohesion Policy with the aim of “intensify[ing]” member states’ “adjustment efforts”, as stated by Jacques Delors (Committee for the Study of Economic and Monetary Union 1989, p. 19). While these forms of conditionality were applied to some extent, member states never followed the rules à la lettre, not at the beginning, nor prior to 2010 (Coman, 2018; Schmidt, 2020). Gradually, conditionality has been extended to many areas, from external policies, such as enlargement and the European Neighbourhood Policy, to structural policies, such as Cohesion and Common Agriculture Policy, although its tangible effect has remained disputed (Vita, 2017, p. 13). Conditionality is also used in territorial policies, such as Schengen, as the accession of Romania and Bulgaria is conditioned to them carrying out reforms under the scrutiny of the Cooperation and Verification Mechanism (CVM). More than ever, the Eurozone crisis brought the idea of conditionality to the fore. In the fast-burning phase of the crisis, political leaders of all persuasions deplored the lack of respect for SGP rules (Schmidt, 2020). In 2011, in a joint letter to Herman Van Rompuy, at the time President of the European Council, Nicolas Sarkozy and Angela Merkel underlined that macroeconomic conditionality of the Cohesion Fund should be extended to the structural funds and that payments from structural and cohesion funds should be suspended in Euro Area countries not complying with recommendations under the excessive deficit procedure (Joint letter, 17/08/2011). Against this backdrop, in 2013, Regulation 1303/2013 was adopted, although with some difficulty (Coman, 2018). It contained measures linking European structural and investment funds to sound economic governance, allowing the Commission to suspend funding if a member state failed to correct its excessive deficit, submit a corrective action plan for macroeconomic imbalances, and implement an adjustment plan or a macroeconomic adjustment plan. Thus, in the 2010s, the idea of linking the EU budget to respect for the rule of law was also dans l’air du temps (Waelbroeck & Oliver, 2017; Halmai, 2019). Campaigning for the French Presidency in April 2017, Emmanuel Macron deplored the “strict conditionality” on member states who fail to comply with the very stringent fiscal and budgetary rules and the rather “lax approach” of the EU when democracy is undermined (Financial Tribune, 29/04/2017). In the same vein, in May 2017, the German government adopted a position paper (Politico, 2017, 30/05/2017) on the future EU budget, very much under discussion in

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the context of Brexit, exploring whether receipt of EU cohesion funds can be linked to the fundamental principle of the rule of law. Championed by France and Germany, the idea of cutting EU funds when EU values are violated was backed by the Benelux, the “Frugal four”, and Italy (depending on the governmental configuration) but was received prudently or even aversely by the governments of several other member states. Not only were rule of law concerns in the public eye, but the European Anti-Fraud Office (OLAF) had also found serious irregularities in the use of EU money, in particular in the case of Hungary (but not only), with street-­ lighting contracts being awarded to a company that had been owned by Orbán’s son-in-law, István Tiborcz (The Guardian, 12/02/2019). The concern of EU institutional actors was to see EU funds used to support “a cosy enclave of illiberal rulers”, which consolidate their reach “while side-­ lining the elements that are essential for constitutional democracy” (Łacny, 2021, p. 4). The Commission’s Initial Ambitions The proposal for a Regulation that would tie EU funds to the rule of law was made towards the end of the Commission led by Jean-Claude Juncker. When he took office in 2014, he declared that the Commission “ought to be political”, meaning that it “was neither the secretary of the European Council nor the slave of the European Parliament”, but should be independent. As he declared in an interview on 19 October 2020, “political” also meant that “the Commission must have its own ideas, that it must not give up and relinquish at the first hurdle and, therefore, that it must be able to say ‘no’ to the European Council” (Fondation Robert Schuman, 2020). But “saying no” to the European Council did not happen during the process of adopting Regulation 2020/2092. The starting point of the Commission’s proposal was deeply imbedded in the intense rule of law dialogue with Poland, conducted in 2016 under the leadership of Vice-President Frans Timmermans following the PiS government’s measures that paralysed the Polish Constitutional Tribunal (Chap. 4). Two years later, the Commission was at an impasse due to the lack of success of the dialogue with the Polish government and the no-go in the Council on discussing the situation in Hungary and Poland under the Article 7 TEU procedure (Chap. 6). Yet, at the highest political level, the institution was initially divided. Tying EU funds to the rule of law “would divide the Union” and “be poison for the continent” (Politico,

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30/05/2017), according to Jean-Claude Juncker—former prime minister of Luxembourg, familiar with the political dynamics in the European Council and the Council. Despite initial internal divisions and hesitations, work on the Regulation began under the leadership of Commissioner Günther Oettinger, in charge of preparing the 2021–2027 EU budget. On the other hand, EU Justice Commissioner Vera Jourova was tasked with developing a definition of the rule of law. On 2 May 2018, while presenting the draft for the next seven-year budget 2021–2027, Jean-Claude Juncker announced the Commission’s proposal for a Regulation on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law (COM(2018)324 final). Observers in Brussels and in European capitals saw this as an attempt to create a framework that would allow the institution to sanction member states not respecting common values, in other words another Article 7 TEU (Interview 2, Civil servant, SecGen Council, 16 February 2021). In other words, many understood the Commission’s proposal as a response to the difficult discussions with the governments of Poland and Hungary, in particular in the Council where the proposal was perceived as a “stand-­ alone rule of law mechanism” (Interview 3, Legal Advisor, EP 15 February 2021), “a sanction mechanism that would penalise member states for not respecting the rule of law” or a “parallel mechanism of Article 7” (Interview 2, Civil servant, SecGen Council, 16 February 2021), which is “the only one provision in the Treaty which allows to go beyond the competences of the Union” (Interview 4, Legal Service, Council, 15 February 2021). As stated by Commissioner Oettinger in the EP’s plenary session, the proposed Regulation was indeed “a logical progression from the current situation” (EP, 16 December 2018), alluding to the challenges faced by the Commission in ensuring compliance with the rule of law. No less important, as a strategic move, the Commission made the political decision to link the content of this Regulation to the adoption of the Multiannual Financial Framework (MFF) and later to the Recovery package meant to address the aftermath of the Covid-19 pandemic. Both the MFF and the Recovery package required unanimity in the Council. As one actor from the EP involved in the MFF negotiation stated, this choice to include the Regulation in a package with the EU’s financial framework was a tool to “create the conditions for a trade-off”. In other words, it was a way to offer those member states reluctant to see an increase in the EU budget after Brexit “some guarantees” with regard to the “quality of EU expenditure” (Interview 5, Administrator, Committee on Budgets, EP, 4

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March 2021). The issue of the quality of spending became even more acute when, in the middle of the COVID19 pandemic, the leaders of the EU member states decided to mandate the Commission to borrow €750 billion on capital markets to support the recovery and, by the same token, to implement the Green Deal. This strategy on the part of the Commission to negotiate the budget and this Regulation together “looked quite wise” initially, although “it turned out to be quite a headache two years later” (Interview 5, Administrator, Committee on Budgets, EP, 4 March 2021), as illustrated in the following sections. The proposal for a Regulation was submitted during the last year of the mandate of the Juncker Commission under the leadership of Commissioner Oettinger and remained in the hands of DG Budget and of the new Commissioner appointed to this portfolio, Johannes Hahn in the Commission led by President Ursula von der Leyen. However, in her mission statements, President von der Leyen entrusted both Commissioners Didier Reynders and Vera Jurova with rule of law attributions. Despite the proposal for a Regulation being about the rule of law, giving the file to Commissioner Johannes Hahn was another political decision meant to dissipate fears that the proposal was another Article 7 TEU procedure in the making. Although it contained a strong rule of law component, it was drafted by the Secretariat General based “on ideas and concepts” driven by DG Budget (in particular the Central financial service which is part of DG Budget and is a horizontal service in charge of the sound financial management for all EU institutions). Hence, the drafting was approached from a budgetary angle. DG Budget was “co-chef de file” with DG Just, the Secretariat General of the Commission, and the Legal Service (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). Inside the Commission, actors were aware of how politically sensitive the proposal was and of the legal reluctance in the Council (as discussed later in the chapter). Towards a Definition of Rule of Law Rooted in Intellectual Traditions and CJEU Case Law With only eight articles, the Commission’s 2018 proposal was short compared to similar texts. Yet, along with the 18 articles in the recital, these 8 articles gave rise to intense debates within and among EU institutions. The recital was important as it gave “meaning to the proper understanding of the text” (Interview 1, Civil servant, DG Budget, Commission, 25

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February 2021). The proposal was developed around a set of key elements including: the meaning of the rule of law, the definitions of deficiencies as regards the rule of law, the procedure to be followed if these deficiencies arise in member states, and the measures to be taken in such an event. As one actor from the Council argued, the initial text: “was very much about the rule of law, at least this is how some of the actors involved in the process perceived it” and not enough about the budget (Interview 2, Civil servant, SecGen Council, 16 February 2021). MEPs, in contrast, deplored that it was not enough about the rule of law. Defining the rule of law was important, particularly in the context in which the Commission made the proposal. Over the last decade, the Commission has been often challenged by the Polish and Hungarian governments who have contended that the EU lacks a clear definition of this common value. Although central to EU internal and external policies, the rule of law has remained a disputed concept. In the 1990s, the Commission “borrowed” ideas on how to safeguard the rule of law from other regional and international organisations (Chap. 3). In the past, it was common practice for the Commission to rely on other regional and international organisations’ expertise, definitions, indicators, and benchmarks associated with the rule of law. In 2018, the proposal marked a shift in this regard as, for the first time, the Commission set forth a definition of the rule of law in a regulation (not in a Communication as it had done in the 2004 Communication on the Rule of law framework), thus relying on the legitimacy of both the EP and the Council, co-legislators in the ordinary legislative procedure. In one single paragraph, the Commission brought together a set of key dimensions of this disputed concept. The proposal emphasised that the rule of law requires the respect of a set of principles such as legality, legal certainty, the prohibition of arbitrariness, the separation of powers, and effective judicial protection by independent courts (European Commission, COM(2018)324 final). These elements have been identified as key, not only in a series of judgments of the Court of Justice (Rizcallah, 2020), but also by the Venice Commission of the Council of Europe and more generally in the academic debate, as a reflection of a gradual process of layering (Chap. 2). To give meaning to the rule of law but also in search for legitimacy, the Commission draws from the judgments of the CJEU (see Table 7.1). They echo the components of the thin understanding of the rule of law outlined in Chap. 2, without which a substantive understating would not be possible. One can argue that in so doing, the Commission

Judgment 46/87 and 227/88, Hoechst/Commission, 21/09/1989.

Judgement C-619/18, Commission v Poland, 24/06/2019. Judgement C-192/18, Commission v Poland, 5/11/2019.

Prohibition of arbitrariness of the executive powers

Effective judicial protection

Legal certainty

Judgement C-496/99 P, Commission/CAS Succhi di Frutta, 29/04/2004. Judgement 212 to 217/80, Amministrazione delle finanze dello Stato/Salumi, 12/11/1981.

Legality

“None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognized as a general principle of Community law”. “The principle of the effective judicial protection of individuals’ rights under EU law, referred to in the second subparagraph of Article 19(1) TEU, is a general principle of EU law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which is now reaffirmed by Article 47 of the Charter” (judgement of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16).

“This interpretation ensures respect for the principles of legal certainty and the protection of legitimate expectation, by virtue of which the effect of Community legislation must be clear and predictable for those who are subject to it”.

“in a community governed by the rule of law, adherence to legality must be properly ensured”.

Selective case law on the rule of law and the principles which the rule of law entails

Rule of law principles

Table 7.1  Selective case law on the rule of law and the principles which the rule of law entails

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“The court concerned exercise its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions” (judgement of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16). “As regards the requirement that courts be independent which forms part of the essence of that right, it should be pointed out that that requirement is inherent in the task of adjudication and has two aspects. The first aspect, which is external in nature, presupposes that the court concerned exercises its functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, thus being protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions” (see, to that effect, judgement of 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16). “The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law” (judgement of 19 September 2006, Wilson, C-506/04).

Independence of the Judgement C-64/16, Associação judiciary—external and Sindical dos Juízes Portugueses, internal dimensions 27/02/2018.

Judgement C-216/18 PPU, LM, Request for a preliminary ruling from High Court (Ireland), 25/07/2018.

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sought to replicate, beyond the state, the traditional meanings of this old principle and to bring together its core elements, in an attempt to provide a comprehensive but nevertheless thin definition of the rule of law, whose key elements are rooted in the case law of the CJEU. This marks a change as the Commission’s 2018 proposal anchors the rule of law in the EU polity. While the rule of law covers many principles, there is particular attention paid to the independence of the judiciary. Paragraph 7 of the recital in the initial proposal of the Commission put forth an understanding of independence which involves not only a certain structure of power but the institutional model promoted during enlargement to ensure that decisions related to the functioning of the judiciary were made independently (COM(2018)324 final). Echoing again some of the central ideas in the recommendations provided by the Commission to candidate countries during the eastern enlargement, the focus on judicial independence rests on a shared global consensus on its importance within liberal democracies as well as in polities beyond the state. Yet, while in the past the Commission’s narrative about judicial independence echoed assumptions put forward by other regional and international organisations, here again the recital of the Commission’s proposal anchored them in the legal foundations of the EU such as Article 19 TEU, which stipulates that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”. Article 19 TEU, to which the Court of Justice has referred in its recent rulings (see Table 7.1), becomes therefore a “structural obligation”, which binds the member states, even in areas in which they are not implementing EU law (Pohjankoski, 2021, p. 136). A Supranational Decision-Making Framework for a General Regime of Conditionality In 2018, the challenge faced by the Commission was establishing a bridge between generalised deficiencies as regards the rule of law and the protection of the financial interests of the Union. “Generalised deficiencies” were defined broadly as “widespread or recurrent practice[s] or omission[s], or measure[s] by public authorities which affect[ ] the rule of law” (Article 2 in the proposal). Article 3 listed a series of deficiencies that “affect[ ] or risk[ ] affecting the principles of sound financial management or the protection of the financial interests of the Union” (European Commission, COM(2018)324 final). The word “risk” encompassed the preventive

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nature of the Regulation, which remained a key issue for the Commission throughout the process. More specifically, article 3 paragraph 2 provided an open list of what constitutes a generalised deficiency as regards the rule of law, that is, how states should not behave. In so doing, the proposal outlined a thin understanding of the rule of law as a power limiting principle, defining breaches as situations: “endangering the independence of judiciary”; “failing to prevent, correct and sanction arbitrary or unlawful decisions by public authorities, including by law enforcement authorities, withholding financial and human resources affecting their proper functioning or failing to ensure the absence of conflicts of interests”; “limiting the availability and effectiveness of legal remedies, including through restrictive procedural rules, lack of implementation of judgments, or limiting the effective investigation, prosecution or sanctioning of breaches of law” (Article 3, COM(2018)324 final). Should said deficiencies be confirmed, the Commission proposed measures such as the suspension of payments and of commitments, a reduction of funding under existing commitments, and a prohibition to conclude new commitments with recipients. The decision-making structure anticipated by the Commission was articulated around three main stages—notification, assessment, decision—layering well-established practices, but with specified deadlines, perhaps to avoid situations in which EU institutional actors fail to respond to rule of law concerns under certain time limits. Regarding assessment, once again the Commission followed the methodology developed during the enlargement process and proposed a qualitative assessment based on the consultation of various actors and sources and of the member state itself. While during the enlargement process, the Commission drew on external sources of information for its assessment— including NGOs, civil society organisations, think tanks—whose legitimacy has been often contested by governments, in the proposed regulation, the assessment was anchored to the EU’s political regime. The Commission suggested drawing on evaluations produced mainly by EU bodies and institutions, including reports of the Court of Auditors and above all, the decisions of the Court of Justice (Article 5, COM(2018)324 final). This marked also a shift from a system of governance relying on external actors to one putting EU institutions at its core. Regarding the procedure to be adopted in case of deficiencies, the strengths of the initial proposal were threefold: adopting the decision of suspending funds by a reverse qualified majority in the Council (i.e. the

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need for a qualified majority to reject the Commission’s proposal), time limits for each stage of the process, and ultimately the obligation for the Council to decide. As in the case of Regulation 1303/2013 which links macroeconomic conditionality to EU funds, the role of the EP (Article 7 of the proposed Regulation) was rather limited, only being “immediately” informed by the Commission of any measures taken. The proposal of the Commission was well received by the Committee of the Regions (Opinion 2018/02389) and the European Economic and Social Committee (Opinion 2018/02955), which both insisted on the substantive aspect of the rule of law and its importance to citizens. Yet they also saw the proposal as a measure meant to protect all the values enshrined in Article 2 TEU, not only the rule of law, proposing the organisation of an annual forum allowing organised civil society and the media to monitor and report violations of values in the EU.

7.3   The Major Shift: The Political Ambitions of the Commission Tempered by the Council Legal Service But the proposal raised many questions about its scope and compliance with EU law in the Council (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). Member states received it “cautiously” (Interview 6, Diplomat, PermRep of Romania, 25 February 2021). The first public reactions came from the governments of Poland and Hungary. The Polish Prime Minister Mateusz Morawiecki argued that “every legal provision needs to be clearly defined” as “there can be no space for arbitrariness” (EUObserver, 2/05/2018). In the same vein, in a tweet, Zoltan Kovacks, the Hungarian government’s spokesperson, questioned the legal basis of the proposal: “There are EU Treaties in force, and we work on the basis of these. No other assumptions exist in a legal sense” (EUObserver, 2/05/2018). From this moment, legality, a core dimension of the rule of law, was invoked throughout all the stages of the process. Member states’ representatives asked the Council Legal Service (CLS) for a legal opinion (Baraggia & Bonelli, 2021) which was provided on 25 October 2018. In 22 pages, the opinion examined whether the proposal was compatible with Article 7 TEU and whether the proposed legal basis—Article 322(1) TFEU—was suitable. Like in May 2014, when the CLS delivered an opinion on the

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European Commission’s Rule of Law Framework (Chap. 4), lawyers in the Council questioned the Commission’s 2018 proposal. In their view, spending conditionality was already “a well-established practice in the context of the EU Funds” (Council Legal Service, 13593/18, p.  7). Second, the opinion also confirmed the fears of some member states, pointing out that the proposal was in clear tension with Article 7 TEU. The CLS underlined that it was “necessary to ascertain whether the two procedures—the one laid down under Article 7 TEU and the one envisaged under the proposal—are independent from each other in the sense of the case law referred to above, i.e., whether they are governed by different rules and they pursue different aims” (Council Legal Service, 13593/18, p. 9). In the CLS’ view, Article 7 TEU is the lex specialis for Article 2 TEU and no other legal authority can cover the same ground. Thus, the opinion stated that “secondary legislation may not amend, supplement or have the effect of circumventing the procedure envisaged in Article 7 TEU” (Council Legal Service, 13593/18, p. 6). Third, the lawyers of the Council pointed out some imperfections and broad formulations in the Commission’s proposal. For the CLS, in order to establish a conditionality regime, it was key to show that the breach to the rule of law affected, or risked affecting, the sound financial management of EU funds or the protection of the financial interests of the Union. Ultimately, the CLS questioned the legal feasibility of adopting measures by a reverse qualified majority (Council Legal Service, 13593/18, p. 4).2 From the perspective of the Council’s legal service, the proposal of linking the EU budget to the respect of the rule of law was “too sensitive” and “too political” (Interview 7, Belgian diplomat, 23 July 2021). According to diplomatic sources, the opinion was applauded by all the delegations in the Council that were reluctant to see such a Regulation adopted. This was the case of governments who had vocally contested the power of supranational institutions, such as the Commission and the EP, not only Poland and Hungary, as often reported in the media. There was neither praise nor positive assessment in the opinion of the CLS, except the acknowledgement that Article 322(1) TFEU was the appropriate legal basis. Scholars argued that the CLS’ opinion sent the message that “the Commission was powerless to prevent the basic values of the EU from being subverted” and that such a “task, instead, remained 2  The Legal Service refused to communicate its opinion in response to the request addressed by prof. Laurent Pech in December 2018 (Council, 15097/18).

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the sole preserve of the Council” (Scheppele et  al., 2018). For lawyers outside the Council, the CLS had embraced a “conservative approach”, although the opinion “didn’t say that it was impossible” to make such a proposal (Interview 3, Legal Advisor, EP, 15 February 2021). The opinion spawned discussions in the legal services of all three institutions, which from that moment on were directly or indirectly associated to all the stages of the adoption of the regulation (Interview 2, Civil servant, SecGen Council, 16 February 2021). The CLS’s opinion marked a key moment in the process and had a considerable effect on the outcome. It insisted that the proposal “must remain linked to the protection of the EU budget” (Interview 3, Legal Advisor, EP, 15 February 2021) and this point began to be carefully considered by all actors, in all three institutions. Reported in the media as a conflict between different legal interpretations, this episode added a bit of “drama” to the discussions, according to one lawyer from one of the three main institutions interviewed for this book. While the lawyers in the Council were more “circumspect”, to use his words, their homologues in the EP were more aligned with the view of their colleagues in the Commission (Interview 3, Legal Advisor, EP, 15 February 2021), although they tended ultimately to agree that there were elements worth of consideration in the CLS’s opinion. In the end, legal actors from the EP contended that the Council’s legal opinion “triggered the right discussion”, “even though it created arguments for Poland and Hungary to resist” (Interview 4, Legal Service, Council, 15 February 2021). Lawyers from the Council praised themselves by arguing that their analysis was appreciated both by those in favour of a strong supranational mechanism and by those questioning its legality. In the Commission, “once they agreed on the idea of a general regime of conditionality in an area of EU competence, all the rest was negotiable” (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). Ultimately, the legal interpretation of the Council largely prevailed. Legality was key in adopting a regulation centred on the rule of law. The tacit consensus between all three legal services was an important moment which bore consequences for the next stages of the process. It was agreed that the Regulation was about the obligation to protect the EU budget avant toute chose: this “made it stronger” and “also concrete for actors in the Council”, said one actor from the Commission (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). The political ambitions of the Commission were steadily tempered by a more cautious

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legal approach. Until the end of the process, the role of the legal services of the three institutions was to constantly advise political actors in the EP, in the Commission, and in the Council to “be careful” (Interview 3, Legal Advisor, EP, 15 February). Even in the EP, where MEPs were trying to expand the scope of the Regulation, it became clear that “duplicating Article 7 would have been hopeless (…)” (Interview 8, Administrator, EP, 4 March 2021). From the outset, lawyers argued that too much focus on the rule of law might set the stage for an annulment of the Regulation by the Court of Justice. As one actor involved in the very first discussions in the EP recalled: “we knew that if we make another Article 7, this will be struck down by the Court of Justice and we will have nothing” (Interview 8, Administrator, EP, 4 March 2021). Already, in the early stages of the process, there were concerns about the possibility of later needing to defend it in Court. Lawyers’ advice to political actors was “to be prepared for any eventuality and to make sure that, in case an action for annulment is introduced”, they will have “a strong case” (Interview 3, Legal Advisor, EP, 15 February 2021), “not a Regulation that goes to the bin, but something that can be used” and “that would not be illegal” (Interview 2, Civil servant, SecGen Council, 16 February 2021), which would have been indeed outrageous in a debate precisely about the rule of law. What was important for all of them, regardless of the political tensions between their respective institutions, was to “make sure that the Regulation can be defended” in case it is brought in front of the Court (Interview 3, Legal Advisor, EP, 15 February). Initially divided, the legal services found a common interest (Interview 3, Legal Advisor, EP, 15 February) to reinforce the draft, legally, throughout the process (Interview 2, Civil servant, SecGen Council, 16 February 2021). From this moment, legal arguments put forward by lawyers within each institution played a key role in framing the content of the Regulation (Dimitrovs & Droste, 2020).

7.4   From Legal Reluctance in the Council to Consensus in the EP On 7 May 2018, the Commission transmitted Regulation 2020/2092 to national parliaments for the submission of a reasoned opinion and to the EP. No national parliament vetoed the Commission’s proposal or expressed subsidiarity concerns (Schinina, 2020).3 National parliaments expressed 3  See the scrutiny status here https://secure.ipex.eu/IPEXL-WEB/dossier/document/ COM20200843.do#dossier-COD20180136.

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both support for and contestation over the nature and scope of the Regulation, mirroring to some extent the position of national parties in the EP and of governments in the Council, as well as the legal concerns brought up by the CLS. In May 2018, the Commission’s proposal “took many by surprise”, “even in the corridors of the EP” (Interview 3, Legal Advisor, EP, 15 February 2021). According to the same source, once the proposal was published, MEPs realized that there was a large majority in favour, “which was not initially taken for granted” considering the internal divisions within the EP (see Chap. 5). The proposal was a “very high-profile file” and several committees in the EP disputed it, in particular LIBE, which was very active in denouncing democratic backsliding in several member states (Interview 8, Administrator, EP, 4 March 2021). Although the focus of the Commission’s proposal was on the rule of law, considering the legal basis, the file was assigned to two committees: the Committee on Budget (BUDG) and the Committee on Budgetary Control (CONT). Each committee had the right to nominate its rapporteur and the shadow rapporteurs. CONT appointed the Spanish Eider Gardiazabal Rubial (S&D), member of the EP since 2014. BUDG appointed the Finish Petri Sarvamaa (EPP), also a member since 2014. It was not a surprise to see the two main political groups appointing the co-rapporteurs, considering the importance of the file. LIBE Committee was only associated, represented by Josep-Maria Terricabras (Greens/EFA), also a member of the EP since 2014 (sometimes substituted in plenary by Judith Sargentini, MEP from the Greens/EFA political group). There was in 2018 a rather widespread consensus in the EP in favour of strengthening the EU’s rule of law governance (see Chap. 5). Yet there remained differences between groups and committees. Every committee in the EP sought to frame the proposal for Regulation through its own lens. In October 2018, the BUDG and CONT committees presented the draft report on the proposal of the Commission. The report submitted by the two co-rapporteurs was followed by a wide series of amendments (9 November 2018) and the opinions issued by the Committee on Constitutional Affairs (22 November 2018),4 the Committee on Regional

4  The opinion received 19 votes in favour from the members of the Committee from ALDE, GUE/NGL, EPP, S&D and Verts/ALE, being opposed by members of the ECR and ENP and one abstention was registered from a non-attached MEP.

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Development5 (23 November 2018), and the Committee on Civil Liberties, Justice and Home Affairs6 (5 December 2018). There were many amendments put forward by MEPs from the Greens/EFA group, who felt that the views expressed by the LIBE committee were not sufficiently taken into account, in particular the substantive dimension, that is the focus on values and fundamental rights in the Commission’s proposal. It is also worth noting that amendments were proposed also by the co-­ rapporteur from the S&D group, Eider Gardiazabal Rubial, as she had not managed to include them in the draft report drafted together with the EPP MEP Petri Sarvamaa (Interview 8, Administrator, EP, 4 March 2021). What was to be considered a “generalised deficiency” was framed differently by the various EP committees. Committees sought to expand the scope of the Regulation to a wide range of deficiencies: some focused mainly on the respect for values, others also paid attention to the proper functioning of the market and to member states’ obligations with regard to fiscal discipline and, above all, tax fraud. For instance, Eider Gardiazabal Rubial submitted a series of amendments to introduce in the recital references to “the social and fiscal dumping” which harm the “fair competition and endanger the financial interests of the Union” and need “to be prevented by the Member States”. Her amendments embraced a broad definition of deficiencies and, by the same token, of the rule of law, proposing references to “increased economic inequalities”, as well as to “unfair competition between states, social dissatisfaction, mistrust and democratic deficit” which “are some of the negative effects of harmful tax practices” (PE, 628.374v01-00, amendment 79, recital 8 new bis). Even more sensitive was her amendment proposing to take into account “the scale of the tax evasion and avoidance”, estimated by the Commission to be “up to EUR 1  trillion a year” (PE, 628.374v01-00, amendment 87, recital 11 a new). In addition, the opinion of the Committee on Regional Development listed among the generalised deficiencies as regards the rule of law “the fiscal discipline of the Member State, in particular the avoidance of 5  The opinion of the Committee on Regional Development was voted with 17 votes in favour supported by the members of the EPP and S&D, rejected by 6 members of ALDE and ECR members with 4 abstentions from GUE/NGL and Verts/ALE. 6  The opinion of the LIBE committee received 33 votes in favour from members from ALDE, ECR, GUE/NGL, EPP, S&D, Verts/ALE, it was rejected by the members coming from ECR, EFDD, EFN, NA and EPP and while some members from the S&D group and EPP abstained.

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excessive government deficit in line with Article 126 TFEU” (European Parliament, 2018/0136(COD) 2018, p.  10). The Committee on Civil Liberties, Justice and Home Affairs issued its opinion in December 2018 and aimed to extend the scope of the Regulation to generalised deficiencies as regards not only the rule of law but also fundamental rights and EU values (European Parliament, 2018/0136(COD), 2018). For its part, the AFCO committee did not refer to generalised deficiencies but to “conditions for the protection of the Union’s budget” (amendment 17), defined very broadly as “endangering the ability of a Member State to respect the obligations of Union membership, including the capacity effectively to implement the rules, standards and policies that constitute the body of Union law” (amendment 19). In Search of a Role for the EP, Experts, and National Parliaments In terms of procedure, the Commission’s proposal only gave the EP the right to be informed of any measures proposed by the Commission and adopted by the Council in case of generalised deficiencies in the rule of law. The EP’s two co-rapporteurs underlined the need for a more balanced mechanism to ensure that the Parliament and the Council are on the same footing, particularly in view of the former’s institutional prerogative as an arm of the EU budgetary authority (European Parliament, 2018/0136(COD), 2018, p.  31). The EP members sought to have “a vote and a voice”, not only at every stage of the procedure, but also in the Commission’s assessment through the involvement of an Expert Panel (Eider Gardiazabal Rubial, EP 16 December 2018), a key idea repeatedly defended by the EP in order to shape the EU’s rule of law policy. Drawing on previous resolutions adopted by the EP (see Chap. 5), LIBE’s opinion insisted on setting up a panel of independent experts, called the Rule of Law and Fundamental Rights Expert Panel, to assist the Commission in assessing annually the situation in all member states “on a basis of qualitative and quantitative criteria” (PE, 628.374v01-00, amendment 96). The opinion also proposed that “the annual follow-up debate on the assessment by the Democracy, Rule of Law and Fundamental Rights Expert Panel (…) be carried out by the European Parliament together with national parliaments” (European Parliament, 2018/0136(COD), 2018).

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Safeguarding the Interests of Beneficiaries: Only Legitimate Interests However All the EP’s reports expressed MEPs’ preoccupation with safeguarding the interests of beneficiaries, in particular individual recipients of EU funds. Indeed, many MEP emphasised that the beneficiaries of scholarship programmes, such as Erasmus, or of research grants should not be affected by the breaches of rules they are not responsible for (amendment 8), (European Parliament, 2018/0136(COD), 2018, p. 9). Yet, the point was not without difficulty. As one participant to the negotiations stated, when dealing with this topic, “we always have in mind the researchers, the NGOs, but they are not the ones who get most of the funds and this can be a challenge in countries where the funds distribution is tainted by corruption … Are we sure we really want to protect those beneficiaries? Do we really want to pay the grants to Babis?” (Interview 8, Administrator, EP, 4 March 2021). This is why the words “legitimate interests” are found in the final text of the Regulation since, in the current state of play, the notion of “beneficiaries” also covers actors under suspicion of corruption and misuse of EU funds. To conclude, the two co-rapporteurs sought to include in the EP’s final report a wide range of amendments (Interview 8, Administrator, EP, 4 March 2021) but with an eye to the legal basis, seeking, according to interviews, to strike a balance between political ambitions and the legal foundations of the proposal. In the end, the compromise that was reached was satisfactory to all the committees. Only a few months after the publication of the Commission’s proposal in May, at the end of December 2018, the compromise work was completed in the EP and, on 17 January 2019, the report drafted by MEP Sarvamaa and MEP Gardiazabal Rubial was voted as a mandate for negotiation with the Council. The Council however was not ready. In the EP, many wished to see the Regulation adopted before the 2019 European elections (Interview 8, Administrator, EP, 4 March 2021). However, the EP had to wait from April 2019 until September 2020, for the Council to be ready to start negotiations. MEP Petri Sarvamaa deplored the slow process in the Council, as evoked in the final plenary of the EP on 16 December 2020. In April 2020, there were “still disagreements among member states on the very basic idea of the Regulation” (Petri Sarvamaa, EP, 5 October 2020). Uncertainty was still high in July 2020, two years after the proposal was first put on the table, when, as Moritz Körner (MEP, Renew) pointed out, “it was rather worrying to hear after one year and a half that there were disagreements in the

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Council about the essence itself: the rule of law and the Regulation” (EP, 5 October 2020). As Petri Sarvamaa recalled: “some thought that this legislation would actually never even see the light of day (…)” (EP, 16 December 2020).

7.5   From Technical Issues to Political Guidance from the European Council Discussion of the proposal in the Council was slow. The Council struggled to reach compromises on the technical issues of the Regulation during the Romanian Presidency, in the first half of 2019. Only after the July 2020 European Council, amid the COVID-19 pandemic, did leaders provide the political guidance that allowed the Council to forge a compromise on the proposal during the German Presidency in the second half of 2020. Compromises on Technical Issues Under the Romanian Presidency Every rotating presidency “knew that this was a poisonous file” (Interview 4, Legal Service, Council, 15 February 2021). It was not only poisonous on its own but was also put on the table with the MFF, another source of divisions, because of the willingness of the “frugal four” to reduce the EU budget. Some argued that the Austrian Presidency, the first to deal with the file, avoided the rule of law topic (Interview 4, Legal Service, Council, 15 February 2021). Others emphasized that the Austrians had focused more on the MFF file, which explains why some member states saw the Austrian Presidency as being slightly “biased” towards the “frugal four” (Interview 2, Civil servant, SecGen Council, 16 February 2021). Nonetheless, the Austrian Presidency identified two points—related to the proposed regulation—that required guidance from the European Council, namely “the link between a generalised deficiency in the rule of law and the protection of the Union’s budget” and “the use of the reverse qualified majority voting rule (QMV) for the adoption of Council decisions on measures” (Council of the European Union, 9499/1/10). But, as one of the interviewees declared, “during the Austrian Presidency, the debate got a bit stuck. Only a presentation of the legal opinion was made (of the Legal Service, nn). In reality, it was under the Romanian Presidency that the technical aspects of the proposed regulation were discussed” (Interview 4, Legal Service, Council, 15 February 2021).

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For the Romanians, who were holding the rotating presidency of the Council for the first time, dealing with the technical aspects of this Regulation was a challenge. Before Romania’s Presidency even started, many observers at the EU and national levels lamented the Romanian PSD government’s supposed lack of ability to successfully perform the Presidency because of its Eurosceptic stance and a domestic context in which corruption and attempts to limit the independence of the judiciary made daily headlines (Coman, 2020). As one Romanian actor with a key role in the process stated: “we Romanians were suspects under the rule of law” and seen as “troublemakers” in Brussels (Interview 6, Diplomat, PermRep of Romania, 25 February 2021). Nevertheless, despite these domestic factors—which cast a shadow on the already weak credibility of the government to fight corruption seriously and respect the rule of law— the Romanian Presidency managed to deal with a series of technical aspects related to the 2020/2092 Regulation with the support of the Secretariat of the Council. While diplomats deplored that discussions about Article 7 TEU were avoided under the Romanian Presidency (see Chap. 6), for their part, administrative actors from the Council perceived the Romanian Presidency as being “very intense” in the discussions about the rule of law and “very good interlocutors” to discuss all the technical aspects of the Regulation for which their Presidency had received a mandate from the Council (Interview 13, Legal Service Council, 15 February 2021). The role of the Presidency was to reach a consensus and this “was not only about trying to persuade Poland and Hungary”, whose prime ministers were publicly very vocal about the issue under discussion (Interview 6, Diplomat, PermRep of Romania, 25 February 2021). Inside the Council questions were raised by other countries too also rather reluctant to this proposal (Interview 2, Civil servant, SecGen Council, 16 February 2021). There were initially three groups of member states: “One was clearly in favour of the tool as proposed by the Commission, one was clearly against, saying that is was overlapping Article 7 TEU and a group in the middle which felt a bit uncomfortable” with the Commission’s proposal (Interview 2, Civil servant, SecGen Council, 16 February 2021). Italy but also Croatia and Bulgaria were rather concerned in the first rounds of discussions (Interview 4 & 8), “because they deemed that the Regulation was too broad” and feared its potential implications. However, although they expressed concerns, raising questions about the issue, “they were never against” the proposal (Interview 2, Civil servant, SecGen Council, 16 February 2021).

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Most of the technical aspects were therefore discussed from January to June 2019, during the Romanian Presidency (Interview 2, Civil servant, SecGen Council, 16 February 2021). These “technical” issues were in fact a series of provisions such as the definition of the rule of law and of its deficiencies, but also many other key points ensuring that the Regulation respects its legal basis and aims to protect the financial interests of the Union. The Romanian Presidency ambitioned to leave only two political aspects (Interview 4, Legal Service, Council, 15 February 2021) for the European Council to discuss (Interview 2, Civil servant, SecGen Council, 16 February 2021): “the power of the Commission in the process, that some member states saw as being ‘too discretionary’” (Interview 6, Diplomat, PermRep of Romania, 25 February 2021) and the voting procedure (the reverse qualified majority proposed by the Commission). The open-ended list of deficiencies set forth in Article 3 of the Commission’s proposal is an example of those technical discussions in the Council. Indeed, the Commission sought to give itself more room for manoeuvre to deal with rule of law concerns. Member states supportive of a strong regulation allowing to sanction rule of law violations, such as the Netherlands, Finland, Sweden, Denmark, France, and Belgium, pleaded for an open list of deficiencies as well (Interview 6, Diplomat, PermRep of Romania, 25 February 2021), a point also considerably discussed during the trialogues (see next section). Conversely, other member states raised questions about the open-endedness of the list. In contrast, not only were Poland and Hungary in favour of a closed list, but the Baltic States, Italy, and Bulgaria were as well, seeing it as a guarantee of legal certainty, a key dimension of the rule of law itself. The number of member states against or in favour was fairly equal which made the Romanian Presidency’s task of reaching a compromise rather difficult (Interview 6, Diplomat, PermRep of Romania, 25 February 2021). In the end, the Presidency text endorsed the principle of a closed list of cases that can trigger the mechanism, which various delegations and the Council Legal Service considered necessary to give sufficient precision and clarity to the text (Council of the EU7959/19, 29 March 2019). Thus, the presidency included in the negotiation box the following proposal: “an open list” of conducts that may be indicative of a generalised deficiency and “a closed list of situations that can results from those conducts” (Council of the EU9388/19, 17 May 2019; Michael Roth, German Minister of State, EP, 9 July 2020). This formulation is a good illustration of the attempts made to accommodate both the interests of member states in favour of a closed list of deficiencies and

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those wishing to see this list as open as possible in order to be able to sanction any future deficiency as regards the rule of law. To conclude, on 17 May 2019, one year after the Commission issued its proposal and at the end of the EP’s eighth term, before the European elections, the Romanian Presidency concluded that “a broad convergence” existed on a number of technical issues (Council of the EU9388/19, 17 May 2019), adding that further political guidance was required (Council of the EU9388/19, 17 May 2019). After the discussion of the “technical aspects” during the Romanian mandate, the Finnish and Croatian presidencies of the Council remained “stuck” on the political aspects (Interview 4, Legal Service, Council, 15 February 2021). Actors stated that “almost nothing” happened until the July 2020 meeting of the European Council. In the second half of 2020, for their presidency, the Germans received a mandate from the Council to move the political aspects forward. As Michael Roth declared, “without guidelines from the European Council on the political elements level it is unlikely that there will be further work at the technical level” (EP, 9 July 2020). The July 2020 European Council: Agreement or Not on the Rule of Law Conditionality? After March 2020, the COVID-19 pandemic increased the complexity of the negotiations on the EU’s seven-year MFF. To overcome the serious challenges posed by the global health crisis, a historical €750  billion Recovery and Resilience Facility (shepherded by Angela Merkel and Emmanuel Macron) was agreed on, with some difficulty, by the European Council, in July 2020, after four days of intense political negotiations with many plot twists. The COVID-19 pandemic reopened the debate over solidarity in the EU, an increase of the EU’s budget and, by the same token, the strengthening of EU rules. Pooling resources to strengthen solidarity was a sensitive topic, revealing the divisions between member states. The size of the new budget made the need for rules that would protect it even more crucial, a sine qua non condition for the member states net contributors to the budget. The July 2020 European Council will be remembered as one of the longest EU summits since the sharp negotiations in Nice, in December 2000. Six main points were under discussion: the size of the MFF, the amount of the recovery fund and its nature (grants or loans to the member states), the rebate, and the rule of law conditionality, all of which were, to

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a great extent, interrelated. Member states were already divided on many issues, but one which had the potential to endanger the outcome was the rule of law conditionality as, on this precise point, the views seemed irreconcilable. The increase of the EU’s resources was conditioned to the existence of strict rules by the Dutch Prime Minister Mark Rutte. On this, the Hungarian Prime Minister Viktor Orbán and the Polish Prime Minister Mateusz Morawiecki were in total disagreement. Prime Minister Rutte was little inclined to make concessions, while on the other side—as far as the conditions of implementation and their link to the rule of law were concerned—the Hungarian and the Polish prime ministers were also unwilling to compromise. In July 2020, the Leaders managed to maintain an ambitious recovery package (Hillion, 2021; Łacny, 2021). The Leaders concluded that “the Union’s financial interests shall be protected in accordance with the general principles embedded in the Union Treaties, in particular the values of Article 2 TEU”, underlying “the importance of the respect for the rule of law (European Council, Conclusions, July 2020). The European Council also announced in paragraph 23 of its conclusions that “a regime of conditionality to protect the budget and Next Generation EU will be introduced” and that the Commission will propose measures for adoption by the Council by qualified majority in case of breaches (European Council, Conclusions, July 2020). But this paragraph remained open to interpretation. Some voices from inside the Council declared that, after that meeting in July, there was still no agreement on the rule of law conditionality (Interview 4, Legal Service, Council, 15 February 2021). The vague wording of the conclusions of the European Council was seen as an advantage by the actors involved in this ordinary legislative procedure at the time. The heads of state or government left Brussels satisfied, acclaiming a big win back in their capitals. Some Prime Ministers proudly announced their success on social media, in particular those opposed to the idea of conditioning EU money to rule of law conditions. In the EU institutions however, enthusiasm was toned-down. Some officials and civil servants involved in the negotiations at the technical level argued that the summit was nothing more than “a missed opportunity”, as far as the rule of law debate was concerned. The vagueness of the European Council conclusions, according to some interviewees, proved to be at the root of the difficulties faced in the negotiations between September and December 2020 (Interview 4, Legal Service, Council, 15 February 2021). The European Council meeting was a relief regarding

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the size of the recovery budget, but actors in the EU institutions still felt considerable uncertainty as to how to translate the conclusions into concrete provisions. While the EP had been ready to engage in negotiations with the Council for several months, MEPs were waiting to see whether the German Presidency of the Council would push the file forward or conversely, delay it in order to secure other important agreements, such as the MFF and the Next Generation Package. The “Germans chose to complete the work on the rule of law” (Interview 8, Administrator, EP, 4 March 2021). The German Proposal: How to Reconcile Irreconcilable Positions? After the July 2020 European Council, all eyes were on the German rotating presidency (July–December 2020), expected not only to find a solution for Regulation 2020/2092, but also to conclude all the files included in the negotiation package—the MFF and the Recovery package—by the end of its six-months mandate. The fact that they were negotiated together had consequences since the unanimity required for the latter was an obstacle for the Regulation which only required a qualified majority in the Council. This complex framework of negotiations allowed each member state to block the process and to try to satisfy all its interests without making any concessions. On 28 September 2020, the Council adopted its negotiating position on the rule of law conditionality, drawing on a compromise text put forward by the German Presidency (Council, 11045/1/20). A political agreement had been reached at the COREPER level to allow the Council to start negotiations with the EP, but not without difficulty. For diplomats in the Council and ministers who had been waiting for quite some time to see progress on this matter, the document put forward by the German Presidency was a reasonable starting point for negotiations. For others, the text weakened the initial proposal of the Commission in many ways. To satisfy the delegations, the German compromise lowered the ambitions of the Commission’s proposal. To begin with, the German compromise text made a series of modifications to the Commission’s proposal with regard to the conditions for the adoption of measures. It replaced the expression “generalised deficiencies” with “breaches of the principles of the rule of law”, a terminology which is closer to the provisions of Article 7 TEU. The “risk”—that is the preventive nature of the procedure—was no longer a condition to take

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action, while many inside the Commission argued that, from an economic point of view, when there is a threat, action should be taken without delay (Council, 11045/1/20). In terms of procedure, the German compromise text got rid of the reverse qualified majority voting. This was seen by observers as another weakness. As a matter of fact, the German proposal did not depart from the July 2020 European Council conclusions, which stated that: “The Commission will propose measures in the event of non-compliance, which will be adopted by the EU Council acting by qualified majority” (European Council, Conclusions July 2020), meaning that the initial proposal of the Commission for adopting decisions by reversed qualified majority voting, also supported by the EP, was rejected. The German proposal changed the time limits at each stage of the procedure. But above all, the compromise text introduced an “emergency brake” in the recital: it stipulated that matters related to breaches of the principles of the rule of law can be referred by the member state concerned to the European Council. Integrating this in the body of the eight articles of the Regulation would have led to an interference of the European Council in the executive competence budget implementation (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). This provision was therefore introduced in the recital. Seeing this, MEPs feared that the introduction of this possibility for member state to address the matter to the European Council would lead to “another rule of law tool that the Council won’t use”, as declared by Daniel Freund, German MEP from the Greens in the EP.  Others argued that the “emergency brake” was “mainly a symbolic win for those Member States most likely to be the first ones being targeted by measures proposed under the new regulation” (Dimitrovs & Droste, 2020). The German text did not bring satisfaction around the table. Observers inside the Council confessed that a compromise was difficult to find, even for the Germans (Interview 11, Diplomat, PermRep Germany, 27 April 2020). The compromise text “barely reached the qualified majority (…) Not only were Poland and Hungary really upset but also some Nordic and Western countries were extremely upset …. The European Council paragraph was nearly unacceptable for the Dutch” (Interview 2, Civil servant, SecGen Council, 16 February 2021). The member states in favour of what they called a strong Regulation were disappointed (Interview 9, Belgian Diplomat, 22 October 2020; Interview 12, Civil Servant, SecGen Council, 26 July 2021). Belgium, the Netherlands, Sweden, and Finland insisted on a

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mechanism providing for a reverse qualified majority in the Council. The Netherlands’ representatives declared that “limiting the Commission’s room for manoeuvre was a mistake” (Agence Europe, 1/10/2020). For the Dutch Prime Minister Rutte, the link between the rule of law and the Recovery Plan payments should have been stronger, deploring that the “The Hungarians and Poles want to dilute the mechanism” (Agence Europe, 2/10/2020). The representatives of the Netherlands, Belgium, and Luxembourg (Interview 2, Civil servant, SecGen Council, 16 February 2021) threatened to vote against the proposal as they deplored that the word “risk”—that is, the preventive nature of the Regulation—had disappeared along with many other provisions they deemed necessary to make the Regulation a strong mechanism. With this compromise, “the aim was to keep Poland and Hungary happy, but in the end they were never happy” (Interview 2, Civil servant, SecGen Council, 16 February 2021). Although for many, the German compromise was a step back, it was still not enough for the delegations of Poland and Hungary (Hillion, 2021). The prime ministers of those two countries argued that the compromise did not reflect the outcomes of the European Council’s conclusions in July 2020. Acting as veto-players, their main aim was to prevent the Regulation from moving forward, at least according to diplomats in the Council. The willingness of the Polish and Hungarian representatives to engage in the discussions was not convincing. Actors around the table understood that their aim was to “kill the Regulation” or at least to “water it down” (Interview 2, Civil servant, SecGen Council, 16 February 2021; Interview 4, Legal Service, Council, 15 February 2021). On 26 November 2020, in a joint declaration, Viktor Orbán and Mateusz Morawiecki proposed an amendment meant “to facilitate the speedy adoption of the financial package by establishing a two-track process” (Agence Europe, 27/11/2020). The two prime ministers proposed to reopen discussions in the European Council about whether a link between the rule of law and the financial interests of the Union should be established. In their views, “the proposed conditionality circumvents the Treaty, applies vague definitions and ambiguous terms without clear criteria on which sanctions can be based and contains no meaningful procedural guarantees” (Orban & Morawiecki, 2020). Against this backdrop, on 18 November 2020, the Council adopted its position at first reading. Those in the Council who were keen to see a stronger mechanism supported the German Presidency in the hope that the parliament would manage to strengthen the Regulation. The presidency sought to accelerate the pace of the negotiations. While the EP had been waiting for over a year, the German Presidency announced the “need

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to increase the pace of the negotiations significantly”, offering to the EP “to negotiate through the weekends as well” (Agence Europe, 28/09/2020).

7.6   The Final Game: Who Gets What and How? Ready for the negotiations in trialogues, both the Commission and the Council hoped, ironically, that the EP would be able to save the essence of the Regulation. For each concession made to reluctant member states, some actors in the Council and the German Presidency expected to see the EP react vehemently. The Council and the EP entered into negotiations in October 2020. They were concluded on 5 November 2020. Five political trialogues were held (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). Only five trialogues for such an important Regulation may seem unusual. One reason for this is that the representatives of the three institutions were under immense time pressure. On the other hand, the Regulation was short, there were not many issues to negotiate. Five trialogues sufficed to reach an agreement also because “the dynamics of negotiation were good”, as recalled by one key participant to the trialogues (Interview 8, Administrator, EP, 4 March 2021). Yet, the EP feared being used as a rubber stamp because of the time pressure and of the need to adopt the MFF and the Recovery package without delay. What Was Non-negotiable What the European Council wanted was non-negotiable: a qualified majority in the decision-making and the “emergency brake”. What the Council wanted, despite the dissatisfaction of some member states, was already included in the German compromise. For example, the Commission used the word “deficiencies” as regards the rule of law. In the end, the word “breaches”, proposed by the Council, prevailed. This echoed terminology used in Article 7 TEU as well as in other areas of law (Dimitrovs & Droste, 2020). This expression was completely untouchable. When we proposed to add “one or more breaches” the German Presidency said: “no way”. If the European Council said this, God said this. No way” adding with a note of humour “Luckily God did not say much! (Interview 8, Administrator, EP, 4 March 2021)

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The Council also got rid of the rule of law in the title of the Regulation (Interview 3, Legal Advisor, EP, 15 February 2021). In addition, the scope of the measures was extended to ensure that the conditionality mechanism would apply to resources allocated through Next-Generation EU and when the Union budget is implemented through loans and other instruments guaranteed by the Union budget. The German Presidency was willing to make concessions to the EP as long as they did not contradict the guidance provided by the European Council. What the EP Wanted and What It Obtained Inside the EP, neither the supporters of the Regulation nor the dissenters were satisfied with the German compromise: as the co-rapporteur Eider Gardiazabal Rubial (S&D) stated, the definition of the rule of law was reduced to the minimum expression. The compromise text “hardly dedicated a sentence to protect the final beneficiaries” (EP, 5 October 2020). Ultimately, it was “outrageous”, in her view, that the EP was granted “almost a mere advisory role or, at most, of validation of what is decided in the Council” (EP, 5 October 2020). Even more critical, Sira Rego (GUE/ NGL) stressed that, by lowering the ambitions of the Regulation, EU institutions were actually “agreeing on how indifferent we will be to the violation of rights in certain States” (EP, 5 October 2020). In the same vein, Sophia in ‘t Veld (Renew) deplored that Council “basically passed on the hot potato” to the EP “because a majority of governments secretly hopes that Parliament will do their dirty work for them, because they are being held hostage by the autocrats in their midst (…)” (EP, 5 October 2020). In contrast, the dissenters, mainly from the ECR group, radical right, and NA, argued that the German compromise did not take into account the European Council’s conclusion, echoing claims also made by the Hungarian and the Polish prime ministers. In their view, the German compromise empowered the Commission, and this was unacceptable. For Zbigniew Kuźmiuk (ECR), the German Presidency’s proposal was “grossly inconsistent with the findings of the July 21 European Council in Brussels” because the German Presidency “wishing to satisfy the most radical expectations formulated here in this House, mainly by its left side”, proposed “a mechanism that is to give the European Commission a free hand in arbitrarily punishing Member States” (EP, 5 October 2020). ECR members, the radical right parties’ MEPs and the NA, as well as some MEPs from Central and Eastern Europe, mainly from the Romanian PSD and the

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Hungarian Fidesz, sought to limit the scope of the Regulation, make it application impossible or even outright rejected it. Non-attached members (Stanisław Żółtek, André Elissen, Marco Zanni) as well the Romanian liberal Marian-Jean Marinescu also wished to reject the Commission’s proposal (EP, 5 October 2020). The Romanian PSD MEPs, Maria Gabriela Zoana and Razvan Popa, questioned the modalities through which the Commission would assess deficiencies in the rule of law and, in particular, the sources the institution would take into account in this regard. MEP Zoana, who argued that “the EU looks like the Orwellian farm in which some member states are more equal than others”, ironically wondered which sources of information the Commission would draw on to assess the state of the rule of law: “what relevant sources?”, she asked rhetorically and pejoratively in the plenary of 16 December 2018. Then, “Media”? Organisations of civil society? Colleagues from “benevolent countries”? The argument of the legitimacy (or lack thereof) of the sources used for the rule of law assessment has been often put forward by members of the Romanian PSD, even before accession (Coman, 2009). It exemplifies a certain form of resistance to networked rule of law governance. Ultimately, MEP Deutsch (Fidesz) expressed his outright opposition to the idea of a Regulation, portraying it as “a rule that goes against the rule of law to protect the rule of law” (EP, 5 October 2020). Against this backdrop, in prioritizing the issues in preparation for the trialogues, the EP negotiation team insisted on (1) the rule of law in the EU, (2) the protection of the beneficiaries, (3) the decision-making procedure, its time frame, and the role of the EP (Interview 3, Legal Advisor, EP, 15 February 2021). Considering what was non-negotiable, which was basically the essence of the Regulation, MEP Petri Sarvamaa “chose not to fight on the decision-making process but rather on the scope” (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). The EP was against the “emergency brake” (Interview 8, Administrator, EP, 4 March 2021), but since this provision came from the European Council, there was little chance to change it. However, the EP sought at least to reduce “the timing of the procedure” (Interview 2, Civil servant, SecGen Council, 16 February 2021). The EP wanted to have the Council vote (Interview 3, Legal Advisor, EP, 15 February 2021) to avoid situations in which rule of law issues are postponed sine die. Thus, the question was not about how to get rid of the “emergency brake” in the recital of the proposed Regulation, but rather how long the European Council would be allowed to “delay” the procedure, which the Commission and the EP wanted to be short,

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“spread over five months instead of nine” (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021), while in the German compromise this period was longer, up to 10 to 12  months (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). The danger for the EP was to see “emerging from this very complex process a mechanism which cannot be used in practice, which would serve only the interests of those who do not wish any measure [to be] taken” (Petri Sarvamaa, EP, 5 October 2020). As one member of the EP delegation recalled: We would have preferred not to have the emergency brake at all, but without it would have been impossible to have the legislation adopted; they put it for Orbán and Orbán still said ‘no’. (Interview 8, Administrator, EP, 4 March 2021)

In terms of decision-making, the EP seized the opportunity to integrate an Expert Panel in the assessment procedure of rule of law deficiencies. This was important for LIBE and had been repeatedly put forward in the EP as a way to strengthen the EU’s rule of law policy (see Chap. 5). But, as one actor explained, “the Commission was against and it didn’t hide it because (…) this was a proof that we did not trust them”, given the outcomes of other rule of law mechanisms in recent years (Interview 8, Administrator, EP, 4 March 2021). The Commission perceived this proposal from the EP as a way to interfere in its power to conduct assessments. In the trialogues, Commission’s representatives argued that although the panel was presented as an independent body, the nomination procedure was fairly political (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). The Council was not in favour of such a panel either, but, “because it had many other sensitive issues to defend, it left the Commission to deal with it alone” with the EP representatives (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). The EP did not manage to secure the Expert Panel in the assessment of the breaches of the rule of law, nor the references to the systemic violations of fundamental rights as a generalised deficiency. As far as its role in the process is concerned, as a representative of the Commission stated, “the EP found a clever way to feed into the process” (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021) by including in the text of the Regulation at provision which states that “in light of the information received pursuant to paragraph 1, the European Parliament may invite the Commission for a structured dialogue on its findings”

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(Article 2 paragraph 2, Regulation 2020/2092). But this view was not shared on the other side of the table of negotiations. EP’s representatives argued in contrast that this provision was not “a win” as the institution “can invite the Commission for a structured dialogue in any way” (Interview 8, Administrator, EP, 4 March 2021). Some actors from the EP deplored the passivity of the Commission in the negotiations, which, according to them, was bound by the conclusions of the European Council (Interview 5, Administrator, Committee on Budgets, EP, 4 March 2021). Another actor from the EP confirmed this perception of a passive Commission, leaving the role of saving what both the Commission and the EP had initially wanted to the EP alone: “the Commission was extremely passive during the negotiations and we were wondering why inside the EP (…) there were probably instructions form the top not to rock the boat (…)” (Interview 8, Administrator, EP, 4 March 2021). In contrast, a key actor from the Commission involved in the trialogues stated that the EP “could have done more” (Interview 10, Commission, 20 January 2021). What the Commission Wanted As a negotiation strategy, the Commission aimed leave the most difficult issues such as the decision-making process, the open-ended or closed list of breaches as regards the rule of law that can have an impact on the EU budget, at the end (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). On the one hand, the preventive nature of the Regulation was the hardest part of the negotiation (Council of the EU, 14099/20). The “risk” was essential for DG Budget which argued that the Commission has a duty to act when there is a risk and to take said risk under consideration. The Council was “completely against the word risk” which might be open to interpretations (Interview 3, Legal Advisor, EP, 15 February 2021). The EP supported the position of the Commission to maintain the preventive nature of the regulation. In the end, the term “risk” was “hidden” in the German compromise “because the Germans knew that it would be rejected by Hungary and Poland and not only them” (Interview 2, Civil servant, SecGen Council, 16 February 2021). To maintain the preventive nature of the mechanism, the Council’s representatives insisted on adding “seriously risk” (Interview 3, Legal Advisor, EP, 15 February 2021), an addition that was heavily discussed (Interview 1, Civil servant, DG Budget,

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Commission, 25 February 2021). This way of framing the risk was the best the Commission could get although, according to its negotiation team, the preventive nature of the initial proposal had already been watered down. On the other hand, the Commission insisted on including in the Regulation an open-ended list of breaches that was fiercely rejected by some member states. The outcome here is open to interpretation. Actors from inside the Commission believed the open-endedness of the list was “preserved” in Article 4 paragraph of Regulation 2020/2092 which makes reference to “other situations or conduct that are relevant to the sound financial management of the Union budget or the protection of the financial interests of the Union” (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). In their view, this is an “escape clause” fairly similar to the Commission’s initial proposition. This was therefore a “win” for the Commission, “a clever balance in order to reconcile the willingness of the Commission of having an effective instrument and the willingness of the Council to have a closed list” (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). One should note that this provision was included by the Council, which, according to one civil servant interviewed for this book, did not share the Commission’s interpretation of the provision about “other situations” as an escape clause. Ultimately, “the reverse qualified majority was the biggest issue all the way through” (Interview 3, Legal Advisor, EP, 15 February 2021). According to interviews,  the Commission knew that the Council would never accept it. Yet, as one member state representative argued, the reverse qualified majority proposed by the Commission was only a “strategic move” to increase its chances of obtaining other compromises in exchange on this very important provision (Interview 6, Diplomat, PermRep of Romania, 25 February 2021). The EP negotiation team was aware that fighting to maintain the reverse qualified majority in the procedure “would have been a lost battle” (Interview 8, Administrator, EP, 4 March 2021). Instead of picking this fight, MEP Petri Sarvamaa decided to focus on other issues as “he knew that trying to win on this point he would have lost” (Interview 1, Civil servant, DG Budget, Commission, 25 February 2021). Overall, beyond what was not negotiable because it had already been decided by the European Council, the Council made some concessions on limiting the timeframe of the decision-making procedure in (important for the EP who wanted to see the Council vote instead of delaying decisions) and on the preventive nature of the mechanism (important for the

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Commission and which was maintained although the wording was proposed by the Council). The main elements of the compromise reached by the Council and the EP were the Regulation’s focus on the protection of the Union budget rather than on the rule of law (as reflected in the title as well), the voting by qualified majority, the conditions of the adoption of the measures that the Council wished to see closed, not open as proposed by the Commission and the EP; the protection of the final recipients and beneficiaries which was increased at the EP’s request and ultimately the role for the Parliament, which was only marginal in the initial proposal. Yet, in 2020, those who may have had high expectations for the text risked being “disappointed” (Interview 4, Legal Service, Council, 15 February 2021). While originally conceived as a way to allow the Commission to deal with the deterioration of the rule of law in member states, the Regulation turned into a mechanism allowing EU institutions to protect the Uion budget. And this was a considerable change, given the context in which the debates were taking place. The Leaders Take All Again: The Controversial Conclusions of the December 2020 European Council This was not the end of the story. On 10 and 11 December 2020, the European Council adopted an interpretative declaration on the link between the disbursement of European funds and respect for the rule of law. This interpretative declaration allowed the governments of Poland and Hungary to finally lift their veto on the EU’s MFF for 2021–2027 and on the EU Recovery Plan, adopted together with the Regulation 2020/2092. Their adoption was extremely well received by all the countries struggling with serious economic challenges in the face of the COVID-19 pandemic. Yet the declaration of the European Council was called a coup d’Etat by MEP Verhofstadt (EP, 16 December 2020) giving rise to fundamental questions about the implications of the Conclusions for the Regulation itself, the role of the European Council in EU decision-­ making, and the independence of the Commission. Supposedly to reassure the Polish and Hungarian governments who opposed their veto until the very end of the process, the Conclusions of the European Council are beyond intriguing. Not only do they instruct the Commission, whose president is a member of the European Council, they also contain a list of provisions which allow us to have an inkling of the concessions obtained by the governments of Poland and Hungary.

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First, the Conclusions stipulate how one should read and understand Regulation 2020/2092 (from a political point of view). To begin with, they underlined, as if necessary to do so, that the objective of Regulation 2020/2092 is to protect the Union budget. It was also stated that “the Regulation is to be applied in full respect of Article 4(2) TUE, notably the national identities of member states inherent in their fundamental political and constitutional structures” (European Council, 10 and 11 December 2020). This was an argument that was often invoked by the Polish and the Hungarian governments. Perhaps in order to differentiate this Regulation from Article 7 TEU, the Conclusions of the European Council also underline that Article 7 TEU is “the procedure to address the breaches of the Union’s values under Article 2 TEU” (emphasises added, see also Hillion, 2021, p. 4). This is reminiscent of the scepticism of the CLS and of dissensus in the Council. Moreover, the most controversial part of the Conclusions was their paragraph (c) according to which “the Commission intends to develop and adopt guidelines on the way it will apply the Regulation, including a methodology for carrying out its assessment”, to “be developed in close consultation with the Member States” (European Council, 10 and 11 December 2020). The verb “intends” is worthy of note, as it implies the wish of the Commission to do so, not the will of the European Council. Following the European Council meeting, the Commission adopted a Declaration “expressing its commitment to apply” these provisions (European Council, 10 and 11 December 2020; European Commission 14099/20). For the EP negotiation team, the idea of guidelines came as a surprise (Interview 8, Administrator, EP, 4 March 2021). In the EP’s view, there was “nothing to clarify”, the Conclusions of the European Council were another “concession” made to Viktor Orbán, “a long delay” which was “completely undue because nobody talked about the guidelines during the negotiations” (Interview 8, Administrator, EP, 4 March 2021). Not only was the Commission to adopt guidelines, but the process of adopting said guidelines was delayed. It was also said that the Commission should wait on the ruling of the Court of Justice if ever an action for annulment of the Regulation was introduced. The Conclusions further stated that “until such guidelines are finalised, the Commission will not propose measures”, adding that the Commission “will fully inform the European Council” (European Council 10 and 11 December 2020). Furthermore, the Conclusions suggested that the Regulation would only be implemented as a measure of last resort, stating that “any formal opening of the procedure will be proceeded by a thorough dialogue with

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the Member State concerned so as to give it the possibility to remedy the situation”. The application of the Regulation seems to be “subsidiary”, as Hillion (2021, p. 4) pointed out, “activated only where other procedures set out in EU law do not allow the EU budget to be protected more effectively, thereby limiting the Commission’s discretion in deciding when to activate the mechanism” (European Council, 10 and 11 December 2020). Also of note is the fact that the European Council returned to one of the points that had been intensely discussed during the negotiations, that is the open or closed character of the list of breaches in the Regulation. In this regard, to avoid any confusion or misinterpretation, the  European Council added that “the mere finding that a breach of the rule of law has taken place does not suffice to trigger the mechanism” (EUCO, 22/20). If the conclusions of the European Council met the willingness of the Hungarian and Polish governments to circumscribe the application of the mechanism (Scheppele et al., 2020; Hillion, 2021, p. 2), the other member states and institutions may have thus missed an opportunity to confront the two recalcitrant governments (Hillion, 2021, p. 10). Ultimately, beyond postponing the application of the Regulation, academics contended that the European Council acted ultra vires (Alemanno & Chamon, 2020) leading to an “unlawful delay in the enforcement of the Regulation” (Scheppele et al., 2020). According to Alemanno and Chamon, by requiring the Commission adopt guidelines and conditioning the application of the mechanism to the finalisation of said guidelines, “the European Council has de facto amended a (draft) legislative act”, while it has no such power to do so under the ordinary legislative procedure. Although it was not unusual to see the European Council give impetus and deal with sensitive issues such as the MFF, the European Council’s increasingly prominent role in the legislative process is a serious problem for the other institutions, and many see it as overstepping its role. Thus, containing the European Council in its role is one of the challenges faced by the EU in a context in which both member states which are in favour of a purely intergovernmental Europe, along with others, who are less supportive of this trend, often turn to the Leaders (Interview 13, Legal Service Council, 15 February 2021; Interview, 15 February 2020). According to one interviewee, the pressure to consult the  European Council on many aspects related to the ordinary legislative procedure comes from “all over the board”, not only from Poland and Hungary (Interview 4, Legal Service, Council, 15 February 2021). This role played by the European Council is a sign of a “profound crisis of the institutional model” (Interview 10,

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Commission, 20 January 2021). The European Council is playing a more active role in day-to-day decision making, “not only stepping into legislation but also in the implementation of the EU budget” which means that “somehow it is downgrading itself” (Interview 5, Administrator, Committee on Budgets, EP, 4 March 2021). The Council adopted the Regulation on 14 December 2020. Despite the wide range of concessions that had been made, the Hungarian and the Polish governments still voted against it, raising the question of whether the “European Council and Commission’s arrangement accommodating the two governments was worth the candle” (Hillion, 2021). Twenty-five member states voted in favour, representing 89.33% of the EU population, Poland and Hungary, representing 10.67% of the population, voted against. Hungary explained its rejection of the regulation by invoking “its vital national interests” and underlaying the “serious legal concerns” as to the conformity of the draft Regulation with EU law (Council of the EU14020/20, 14 December 2020). The compromise has not dissipated dissensus and contestation. On 26 January 2021, MEPs called for a challenge to the Declaration of the Commission and to the interpretative declaration of the European Council before the Court of Justice. In a letter sent by MEP Antonio Tajani to the EP’s AFCO committee, he pointed out that the degree of detail in the Conclusions of the European Council exceeds the character of orientation. The EP however did not act on this, a decision which was, according to some sources, regretted afterwards. In contrast, on 11 March 2021, Hungary and Poland brought an action to the Court. The applicants claimed that the Court should annul Regulation 2020/2092. In support of their claim for annulment, both Hungary and Poland relied on the pleas in law alleging that the EU lacked competence to adopt the contested Regulation and that the Regulation breaches the principle  of legal certainty (C-156/21). Belgium, Denmark, Germany, Ireland, Spain, France, Luxembourg, the Netherlands, Finland, Sweden (which have been also active in the hearings related to Article 7 TEU)  and the Commission intervened in support of the Parliament and the Council, while Poland and Hungary supported each other. On 16 February, when the manuscript was already submitted for publication, the Court of Justice of the EU, sitting as a full Court, dismissed the action brought by Hungary (C-156/21) and Poland (C-157/21) against the conditionality mechanism (Press Release No 28/22, 16 February 2022) confirming therefore its validity.

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The Commission’s Adoption of Guidelines: Obedient or Independent? After the European Council meeting in December 2020, the Commission adopted a declaration taking note of the European Council’s Conclusions (Council of the EU 14020/20). The president of the European Commission, Ursula von der Leyen, declared that the regulation “will apply from 1 January 2021” and that “any breach that occurs from that day onwards will be covered”. She also wanted to assure that the Commission will “act in full autonomy”, yet accepting to “adopt guidelines on the regulation”, as decided by the European Council (EP, 16 December 2020). This declaration has raised questions about the Commission’s independence. Determining where the independence of the Commission starts and where it ends remains a question with many possible interpretations. MEPs deplored that by adopting the guidelines asked by the European Council the Commission’s President was ready to accommodate the heads of state and government rather than to safeguard its independence, as Kati Piri (S&D) stated (EP, 16 December 2020). For Ska Keller (Greens/ EFA) “even more worrying” was the Commission’s role in this process (EP, 16 December 2016). On 23 March 2021, the EP voted a resolution for the application of the Regulation by the Commission. Figure  7.1

Fig. 7.1  EP’s vote on the application of Regulation 2020/2092 (25/03/2021)

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clearly shows that only ID MEPs, ECR, and half of the NA MEPs voted against, with the exception of one or two rebels in the EPP group, GUE and ERC (see also the chapter on the rule of law debate in the EP). On 6 June 2021, the EP voted again on the immediate application of the Regulation with 74% of votes in favour (506), 22% against (150), and 4% abstentions (28). In October 2021, the EP ultimately submitted a lawsuit against the Commission over its failure to apply Regulation 2020/2092 (Platon, 2021). On 2 March 2022, the Commission published the long-awaited guidelines (Commission, 2022, 1382 final) which draw to a large extent on theRegulation and on the judgments of the Court of Justice (C-156/21 and C-157/21). Despite this, the Regulation has not been applied at the time of writing, partly because since the 24th of February 2022 all EU institutional actors have focused their attention on the war in Ukraine and its consequences, partly because of the lack of political will to do so. Although the  Russian invasion has changed the overall EU's agenda, in the EP, in March 2022, the S&D, Renew Europe, Greens/EFA and The Left groups  called on  for European Commission President Ursula von der Leyen not to approve the Polish recovery plans until the independence of the judiciary is restored in the country (Agence Europe, 25/03/2022).

7.7   Conclusion This chapter sought to show how dissensus and contestation over the reconfiguration of the rule of law at the EU level shaped the outcome of this highly sensitive Regulation, as well as the power relations between EU institutional actors. First of all, Regulation 2020/2092 establishes the EU’s authority in its relations with member states through the budget, establishing conditions for its sound management. Because of legal contestation and increased dissensus over the rule of law, its content underwent a major shift: it went from a piece of legislation about how to deal with rule of law violations in EU member states to a text about the sound management of the EU budget. Second, the Regulation complements what is called in this book the EU’s rule of law policy, through a process of multiple legitimacies. Despite the mitigated outcome, this new form of conditionality is legitimized through a tumultuous ordinary legislative process which rests on the legitimacy of the EU’s main institutions—the Commission, the EP and the

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Council—as well as the opinions of the national parliaments and, above all, the contested guiding role of the European Council. Its mitigated outcome is precisely the result of “compromises on compromises”, in the words of Scheppele et  al. (2020). These compromises are the result of political struggles and conflicts between EU institutional actors with polarized views on the issue at stake. Why? The political desirability and legal feasibility of such a policy tool have been disputed. Legality has been invoked—initially in the Council and, at a later stage, in the EP and in the Commission. Legal considerations conditioned political ambitions. But neither the use of the law nor did political compromises reduce the polarisation of views. While consensus (reached with difficulty) prevailed in the EP, dissensus and contestation shaped the outcome (a contested compromise) in the Council and the European Council. Debates in the Council and the European Council very much focused on legality and control. In contrast, the EP focused on all four rule of law dimensions, mainly on substance and less on control. Although the Parliament did not fight to change what was obviously non-­ negotiable—the core of the decision-making procedure (control)—it did try to shape the substance of the Regulation, the protection of the legitimate interests of the beneficiaries of EU funds. Third, power helped bring together the pieces of the puzzle. This chapter largely confirms a trend in EU decision-making process that scholars have conceptualized as an expression of a new intergovernmentalism, in which the European Council and the Council are the centres of gravity of EU decision-making (Puetter, 2012). They instruct the Commission and the EP, which, according to new intergovernmentalism are complicit in this trend (Bickerton et al., 2015). Yet, the chapter portrays a rather different picture. Indeed, the European Council interferes in day-to-day decision-making, instructing the Council, or, in other words, the heads of states or governments instruct their ministers, acting collectively at the EU level. The chapter shows how the independence of the Commission is put into question, considering that its President is a member of the European Council and part of the decisions adopted by it. Yet, the case analysed here provides some nuance regarding the EP’s room for manoeuvre. The EP seems to remain the only supranational institution facing two intergovernmental institutions—the Council and the European Council, plus the Commission. The process of decision-making (ordinary legislative procedure) in the EU has used to be described as a triangle (the Commission at the top proposes, the EP and the Council on equal footing adopts

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decision), more recently as a rectangle (to include the growing role of the European Council). However, the case under consideration reminds me rather of a kite, with the European Council at the top, two pairs of adjacent sides—the Commission and the Council “instructed” by the Leaders (expression often used to refer to the European Council), and an unequal opposite side, the EP, at the bottom. This is perhaps the illustration of the “new method of the Union”, invoked by Chancellor Merkel, the constant search for consensus among member states in the European Council and the “imperative to do everything possible to find a way to keep Europe together” (Politico, 23/10/2021), which alters the balance of power, increases intergovernmentalism, and limits parliamentary power which is fading to a peau de chagrin. The EU is indeed a polity of multiple legitimacies. Yet, the one which seems to be most often limited is that of the parliaments. Fourth, regarding the EU’s rule of law policy as a whole, the Regulation provides a definition of this disputed principle which is essentially anchored in the rulings of the Court of justice. By listing in the recital (3) and in Article 2 “legality, implying a transparent, accountable, democratic and pluralistic law-making process, legal certainty, prohibition of arbitrariness of the executive powers, effective judicial protection including access to justice, by independent and impartial courts and separation of powers”, the Regulation not only restates the core dimensions of the rule of law put forward in academic literature (Chap. 2), but also anchors it in the jurisprudence of the Court of Justice of the EU (Chap. 4). The definition of the rule of law provided is therefore an attempt to transfer to the supranational level the most common understandings of the concept, as rooted in the constitutional and intellectual traditions of member states (Chap. 2). Yet, the rule of law principles mentioned in the Regulation are not only about how power should be exercised but also about effective judicial protection, including access to justice, harking back to Article 47 of the EU’s Charter of Fundamental Rights. The recital of the Regulation is a modest attempt to go beyond the thin understanding of the rule of law, solely limited to legality, to also emphasise its goals. Ultimately, the recital 12 of the Regulation mentions both Article 19 TEU—which requires member states to provide effective judicial protection in the fields covered by EU law—and Article 47 of the Charter—which maintains that the independence of courts is essential. In other words, the rule of law is gradually anchored in the legal basis of the EU and the jurisprudence of

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the Court, while also mirroring the intellectual and constitutional traditions of Western member states. Fifth, regarding the decision-making procedure, the shadow of intergovernmentalism hangs over the supranational procedure established by the Regulation. While the process is initiated by the Commission, decisions are made by the Council, not by a reverse qualified majority but by a traditional qualified majority. Compared to other procedures regarding the rule of law, this one—if used—has the merit of introducing a timeline instead of postponing decisions sine die. The shadow of intergovernmentalism is expressed in the disputed “emergency brake” and the mention in Recital 26 of addressing the matter to the European Council, as if the Regulation was a hybrid system: supranational at its core, intergovernmental if needed, but shifting from governance and soft tools towards hard tools and more integration.

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European Commission, 2022, Communication from the Commission, Guidelines on the application of the Regulation (EU, EURATOM) 2020/2092 on a general regime of conditionality for the protection of the Union budget, C(2022) 1382 final. European Commission, 14099/20. European Commission. (COM(2018)324 final). Proposal for a Regulation of the European Parliament and of the Council on the Protection of the Union’s Budget in Case of Generalised Deficiencies as Regards the Rule of Law in the Member States. European Committee of the Regions, The Multiannual Financial Framework Package for the years 2021–2027 (Opinion COR 2018/02389, 9 October 2018). European Council, Conclusions, 17, 18, 19, 20 and 21 July 2020. European Council, Conclusions, December 2020, EUCO22/20. European Economic and Social Committee, Proposal for a Regulation of the European Parliament and of the Council on the Protection of the Union’s Budget in Case of Generalized Deficiencies as Regards the Rule of Law in the Member States (Opinion EESC 2018/02955, 18 October 2018). European Parliament 2018/0136(COD). (2018). Draft Report on the Proposal for a Regulation of the European Parliament and of the Council on the Protection of the Union’s Budget in Case of Generalised Deficiencies as Regards the Rule of Law in the Member States (COM(2018)0324—C8-0178/2018—2018/01. European Parliament, Draft Report Eider Gardiazabal Rubial, Petri Sarvamaa (PE628.374v01-00), Amendments. Fondation Robert Schuman. (2020, October 19). Fondation Robert Schuman. Retrieved February 18, 2021, from https://www.robert-­schuman.eu/en/ european-­i nterviews/0100-­e xclusive-­i nterview-­w ith-­j ean-­c laude-­j uncker-­ europe-­is-­a-­world-­power-­and-­unaware-­of-­it Halmai, G. (2019). The Possibility and Desirability of Rule of Law Conditionality. Hague Journal on the Rule of Law, 11, 171–188. Hillion, C. (2021). Compromising (On) the General Conditionality Mechanism and the Rule of Law. Common Market Law Review, 58, 267–284. Interview 1, Civil Servant, DG Budget, Commission, 25 February 2021. Interview 2, Civil Servant, SecGen Council, 16 February 2021. Interview 3, Legal Advisor, EP, 15 February 2021. Interview 4, Legal Service, Council, 15 February 2021. Interview 5, Administrator, Committee on Budgets, EP, 4 March 2021. Interview 6, Diplomat, PermRep of Romania, 25 February 2021. Interview 7, Belgian Diplomat, 23 July 2021. Interview 8, Administrator, EP, 4 March 2021. Interview 9, Belgian Diplomat, 22 October 2020. Interview 10, Commission, 20 January 2021. Interview 11, German Diplomat, PermRep Germany, 27 August 2020. Interview 12, Civil Servant, SecGen Council, 26 July 2021. Interview 13, Legal Service Council, 15 February 2021.

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Kelemen, D.  R. (2020). The European Union’s Authoritarian Equilibrium. Journal of European Public Policy, 27(3), 481–499. Łacny, J. (2021). The Rule of Law Conditionality Under Regulation No 2092/2020—Is it All About the Money? Hague Journal on the Rule of Law, 13, 79–105. Louis, J.-V. (2021). Respect de l’état de droit et protection des finances de l’Union. Cahiers de Droit Européen, 1(57), 1–20. Orban, V., & Morawiecki, M. (2020, November 26). Joint Declaration of the Prime Minister of Poland and the Prime Minister of Hungary. Platon, S. (2021, November 6). Bringing a Knife to a Gunfight: The European Parliament, the Rule of Law Conditionality, and the Action for Failure to Act. VerfBlog. Pohjankoski, P. (2021). Rule of Law with Leverage: Policing Structural Obligations in EU Law with Infringement Procedure, Fines, and Set-off. Common Market Law Review, 58, 1341–1364. Politico. (2020, July 21). What EU Leaders Really Decided on Rule of Law. Puetter, U. (2012). Europe’s Deliberative Intergovernmentalism: The Role of the Council and European Council in EU Economic Governance. Journal of European Public Policy, 19(2), 161–178. Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a General Regime of Conditionality for the Protection of the Union Budget. Rizcallah, C. (2020). Le principe de confiance mutuelle en droit de l’Union européenne. Un principe essentiel à l’épreuve d’une crise des valeurs. Bruylant. Scheppele, K.  L., Pech, L., & Kelemen, D.  R. (2018, December 11). Never Missing an Opportunity to Miss an Opportunity: The Council Legal Service Opinion on the Commission’s EU Budget-Related Rule of Law Mechanism. VerfBlog. Scheppele, K. L., Pech, L., & Platon, S. (2020, December 13). Compromising the Rule of Law While Compromising on the Rule of Law. Schinina, M. (SOG-WP63/2020). Strengthening the Rule of Law in the EU: What Role for the Interparliamentary Cooperation? Luiss School of Government, Working Paper Series, 1–47. Schmidt, V.  A. (2020). Europe’s Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone. Oxford University Press. Vita, V. (2017). Revisiting the Dominant Discourse on Conditionality in the EU: The Case of EU Spending Conditionality. Cambridge Yearbook of European Legal Studies, 19, 116–143. Waelbroeck, M., & Oliver, P. (2017). La crise de l’état de droit dans l’Union européenne: Que faire? Cahiers de droit européen, 299–342.

CHAPTER 8

When Civil Society Engages with the EU’s Rule of Law Policy-Making: Towards a More Substantive Understanding?

8.1   Introduction Over the past decade, the rule of law has given rise to numerous protests in several EU member states, in particular when governments have adopted measures to limit the independence of the judiciary, to constrain the powers of their Constitutional courts, to subordinate judges to the political will and ultimately to change the foundations of the political regime. From Budapest to Sofia and from Bratislava to La Valetta, Prague and Bucharest, citizens have taken to the streets to voice their moral indignation and to establish boundaries that they believe their governments should cross (Krastev, 2013, p. 5) with uneven effects on policy. Many protests have been organised in recent years, ranging from 60,000 nationalist demonstrators in Poland calling for a “white Europe” in 2017, opposing refugees and liberals, and defending Christian values (The Guardian, 12/11/2017), to thousands of European citizens taking to the streets in many Central and Eastern European countries to voice their support of the EU and “its common values” that can only be upheld by respecting the rule of law (The Guardian, 14/03/2017). Some protests have been partially successful, preventing or delaying the adoption of new rules opposed by the protesters, delegitimising governmental action, and threatening their country’s international image. Others were repressed or delegitimised by the governments themselves. In January 2017, in Romania, half a million © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_8

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people occupied the central place of Bucharest, waving European flags, appalled by the corruption of their elites and their zeal to decriminalise acts of corruption. Lasting over two weeks in temperatures far below zero, and bringing together over half a million of people in front of the Government’s office in Bucharest, these were the biggest protests since the collapse of communism. In the same vein, in many cities in Poland, citizens have denounced the violations of their rights by their government, in particular with regard to sexuality and reproductive rights, while in Hungary many have voiced their concerns about national measures that shrink the space of civil society and limit pluralism, among many issues. In Sofia, Bratislava, Budapest, Warsaw, and several other European cities, citizens have uttered their indignation against democratically elected governments who—in the name of the people and sovereignty—have altered the core dimensions of democracy and the rule of law. The question is: how does organised civil society engage in the EU’s attempts to establish a rule of law policy? Which dimensions of the rule of law give rise to dissensus, contestation, or consensus? Legality? Control? Consent? Or the substantive dimension, that is, rights? To shed light on these questions, two arenas of citizens’ participatory democracy are examined: civil society participation in consultations organised by the European Commission and the use of the European Citizens’ Initiative (ECI). Each institutional arena structures and constrains the expression of consensus/dissensus over the rule of law. On the one hand, consultations are top-down; ECI’s are in theory bottom-up. The former are initiated by the Commission, the latter are put forward by Citizens’ Committees. While in consultations with the Commission the agenda is set by the institution itself as it attempts to test the degree of support for its initiatives from within organised civil society, in contrast, ECIs have the potential to arouse contestation by bringing EU policy into question and expressing interest in a more radical policy change (Bouza Garcia & Greenwood, 2014). Consultations can be open or closed. As Bunea put it, open consultations are “well-suited to increase publicity, expand the universe of involved actors and facilitate polarisation” (Bunea, 2020, p. 446). ECIs have been enshrined in the treaties with an agenda-setting effect independent of the Commission’s monopoly of initiative. One million citizens signing in support of an ECI has the same legal strength as the power of the EP and the Council to initiate a legislative act in their respective areas of competence (Bouza García & Greenwood, 2014, p.  249). The attitudes of actors in the two arenas are expected to be different. In

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consultations with EU Commission, civil society organisations tend to fuel consensus with EU institutional actors. In contrast, the ECI, which is a more recent mechanism of participatory democracy, has been seen as an opportunity “to raise contention” by those with alternative views of EU integration, or “paradigms”, as Bouza García and Greenwood calls them (2014, p. 249), promoting public debate around polarised issues. In other words, the ECI is expected to appeal to those who contest EU integration and who promote radical claims likely to capture public attention (Kandyla & Gherghina, 2018, p. 1225). It is likely that the issues put forward, and also the actors involved will differ between the two arenas. The Commission’s consultations seem to rely on a discrete group of Brussels-based actors, connaisseurs of EU policy-­ making, who possess the necessary resources to engage in the decision-­making process. In contrast, ECIs are designed to include citizens more widely. One might expect to see ECIs facilitating “new entrants to the EU political arena who bring diverse agendas not catered for by dialogue with lobby groups in which the latter have to operate within constraints set by political institutions” (Bouza García & Greenwood, 2014, p. 249). ECIs are a forum neither for “an exchange of views” nor for “elite dialogue with interest representation organisations” but rather facilitate transnational public campaigns (Athanasiadou, 2019, p.  251) which can lead to formal proposals for legislative acts required for implementing the treaties. Against this backdrop, one might expect that consultations of the Commission would be arenas of consensus while ECIs would have higher degree of dissensus, being more contentious than traditional forms of consultation. Yet, this chapter shows the opposite: recent consultations with the Commission on the rule of law have revealed more contestation and dissensus rather than consensus and the ECIs showed more consensus than dissensus. In consultations, civil society organisations and actors address the rule of law from the perspective of its substance—that is, rights—as opposed to a thinner conception that the Commission puts forwards, and, by the same token, seeks to expand the scope of EU action in other areas. In contrast, those civil society organisations and actors seeking to limit the scope of the EU’s action participate in the same consultations but are less numerous and tend to express dissensus over the question of legality and control of the emerging rule of law policy. The 2019 consultation revealed not only an increase in the number of actors but also more dissensus and contestation vis-à-vis the Commission, perhaps as a sign of

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dissatisfaction with the inability of EU institutional actors to put an end to the rampant erosion of democracy in Hungary under the Fidesz government and in Poland under PiS, to cite the most debated cases at the EU level although not the only contexts where the rule of law is under strain. Put differently, in consultations, civil society sought to challenge the Commission’s institutional agenda, while the ECIs sought to assert the EU’s capacity to act. Both the 2015 and 2019 ECIs were contentious in their content, with the first targeted the erosion of democracy in Hungary (triggering debates both in the Commission and in the Council), while the latter proposed the empowerment of the EU in rule of law matters and therefore more integration. Empirically, this chapter shows that both the civil society organisations which contribute to Commission consultations as well as the organisations supporting ECIs on this topic are in favour of more robust EU action. Only a minority of actors voice dissensus and enter the EU decision-­ making with the aim of questioning the legality of the EU’s attempts in this regard. Overall, neither participants in consultations (with some exceptions) or ECIs seek to reduce the scope of action of the EU. On the contrary, in different ways, they call on the Commission to be proactive. Yet contestation is expressed as an attempt to embrace a more substantive conception of the rule of law through the translation of rights into concrete policies, while dissensus points out the legality of the EU. Consultations challenge the institutional agenda of the Commission and its ideas, actors claiming to put forward a substantive understanding of democracy and the rule of law that put citizens at the core of EU’s raison d’être. The two ECIs studied here increased awareness and mobilisation, driving consensus on the importance for the EU to act through new tools when the rule of law is undermined in EU member states (Table 8.1). These findings are attributed to the specificities of the two arenas: both ECIs and consultations tend to be more contentious, in particular when they are organised online, than when actors meet and argue in person.1 This chapter is organised as follows: Sect. 8.2 analyses two rule of law consultations organised by the European Commission: the first, in 2013, during the presidency of José Manuel Barroso, prior to the establishment of the EU Justice Scoreboard (Chap. 4) and the second, in 2019, prior to the beginning of the presidency of Ursula von der Leyen and in the 1  I am grateful to Alvaro Oleart (Maastricht University) and Luis Garcia Bouza (University of Madrid) for their feedback on this chapter.

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Table 8.1  Consensus, contestation, and dissensus in rule of law consultations and ECIs Arenas Rule of law dimensions

Consensus over

Consultations on the rule of law 2013 Legality – 2019 Control Control (yet a diversity Consent of views) Substance European citizens initiatives 2015 Legality Control 2019 Control Control Consent Substance

Contestation over

Dissensus over

Substance –

Legality Substance and legality

– –

– –

context of adoption of the Regulation 2020/2092 (see Chap. 7). Section 8.3 focuses on two ECIs: Wake up Europe! Taking action to safeguard the European democratic project (2015) and Respect for the rule of law within the European Union (2019).

8.2   Civil Society and the Rule of Law: Engaging with the Commission in European Consultations Over recent decades, the number of civil society organisations defending and promoting the rule of law has considerably increased both in Europe and elsewhere in the world (Marshall, 2014). From the 1990s onwards, a wide range of actors have mobilised material and cognitive resources related to democracy, the rule of law, human rights, good governance, and transnational justice, with an explosion of entities involved in the rule of law promotion at the international level (Dallara & Piana, 2017). In the EU polity as well, a considerable number of organisations, think tanks, and professional associations gravitate around European institutions seeking to draw attention to rule of law concerns (Dallara & Piana, 2017). Most of them have been active since the inception of the Eastern enlargement process, when the rule of law represented a sine qua non condition for joining the EU and when NGOs, experts, magistrates, and civil servants actively participated in the process of defining and diffusing norms and standards of judicial reforms and attracting the attention of the

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governments of the member states, both old and new (Dallara & Piana, 2017). Since the beginning of the 1990s, several networks have emerged— such as the European Judicial Network, the European Network of Councils for the Judiciary, or the Network of the Presidents of the Supreme Judicial Courts of the EU—some of them with the support of the European Commission, established with the aim of increasing judicial cooperation in civil and criminal matters, to strengthen mutual confidence, and to develop a European judicial culture (Dallara & Piana, 2017). Drawing on the analysis of the contributions submitted in 2013 and in 2019 by civil society organisations to these consultations, this section shows that contestation and dissensus go in two different directions: dissensus echoes the arguments of reluctant governments against any action taken by the EU to deal with the rule of law on grounds of legality; contestation targets EU institutional actors’ focus on thin/formal conceptions. The 2013 Consultation: Les Assises de la Justice Les Assises de la Justice took place in November 2013 and focused on “Building Trust in Justice Systems in Europe”. This consultation was intended as a forum to shape the future of EU Justice Policy. Under the leadership of Commissioner for Justice Viviane Reding, the Commission put forward a set of broad questions such as: Who should be responsible for safeguarding the rule of law and how can this be done with or without the revision of the treaties? What are the most appropriate solutions for monitoring, assessing, and enforcing the rule of law (Speech 13/348)? More than 700 participants registered. About 100 organisations representing member states, NGOs, professional associations, think tanks, and academics contributed to the normative discussion about the rule of law in the EU and proposed concrete solutions to safeguard this value at the supranational level (Coman, 2016, p. 178). The event coincided with the publication of a Eurobarometer survey indicating that only 22% of respondents think that a national justice system should be an exclusive matter for member states, while two-thirds indicated that the existence of cross-­ border issues also require action at the EU level (Eurobarometer 80, 2013). While participation was broad, substantive input (i.e., contributions) came only from representatives of political, professional, and intellectual milieus. About 30 written contributions were submitted by think tanks, universities, and academics, as well as rights and professional associations

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of judges and prosecutors at the national and European level, representing 60% of the written contributions received. Within this broad category, the European and national networks of judges and prosecutors represented 14% of the written contributions, yet their actual representativity was higher as they also served as the voice of numerous domestic associations. The remaining 40% of the contributions came from EU institutions, agencies, and national institutions, as well as regional organisations. Calling on the EU for a Comprehensive Human Rights Policy In 2013, most (if not all) of the contributions did not tackle the rule of law per se. They contained little discussion of legality, control, or consent, instead mainly focusing on substance (as illustrated in Table  8.2), on human rights violations, democratic backsliding, social welfare, and excessive deregulation. The contributions submitted were very rich in terms of ideas, that is, in pointing out what the role of the law should be, what was at stake, and how to deal with rule of law concerns. Despite the diverse profile of the organisations involved, they engaged in a reflexive discussion about the way in which the EU should approach the rule of law from the perspective of human rights. In 2013, the debate about the rule of law was also still linked to certain EU institutional actors’ attempts to save the euro through austerity measures, while other actors criticised the impact this had on national justice systems and rights. Table 8.2  Les Assises de la Justice 2013. Rule of law dimensions put forward by civil society organisations Names of participation organisations

Legality Control Consent Substance

Abogacia Espanola × Amnesty International Greek Association of Judges and Prosecutors × Danish Institute for Human Rights Democracy Reporting European Association of Judges European Digital Rights Fundamental Rights Agency Open Society European Policy Institute European Network of Councils for the Judiciary Bingham Centre for the Rule of Law ×

×

×

× × × × × × × × ×

×

×

× × ×

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On the one hand, several associations of judges and prosecutors as well as civil society organisations emphasised the importance of rights, too often violated in member states, with little action from the EU itself. Organisations such as Amnesty International and the Human Rights and Democracy Network or representatives from the legal professions reminded participants of the importance of law to “restore social welfare” and to prevent “excessive deregulation” (Contribution to the 2013 consultation). Amnesty—which also represented the Human Rights and Democracy Network in the 2013 consultation—did not focus on the rule of law per se, but on the urgent need to take human rights seriously in the EU (and hence to strengthen the rule of law). Amnesty persistently condemned the violence against women, discrimination against people with disabilities, the vulnerability of other minorities groups, the rise of homophobic and transphobic crimes, the conditions of pre-detention, discrimination against Roma, and the tragedy of migrants risking their lives to reach Europe—all issues which require attention. Not only did Amnesty criticise the Council’s lack of political will to discuss human rights violations but it also called for the implementation of the Charter of Fundamental Rights of the EU and urged the Commission to use human rights violations as a basis for infringements (Contribution to the 2013 consultation). Amnesty’s contribution was therefore mainly to plead for an enforceable mechanism to enhance human rights, in which the Council of Europe should complement rather than replace the action of the EU. A comprehensive human rights policy was also promoted by the Danish Institute for Human Rights. On the other hand, some participants challenged the excessive emphasis on the link between the rule of law and economic development (see Chap. 4). They questioned the desirability of fostering economic growth and the role of national justice systems in this way, suggesting that the Commission focused too much on this in its Communications and in the EU Justice Scoreboard (see Chap. 4). The European Association of Judges went further by enquiring about the idea of “efficiency”, too often put forward as an aim to be reached, insisting that “improving judicial effectiveness cannot be all about seeking to reduce costs or saving money, especially when judiciaries and courts in many member states are already seriously under-funded” (Contribution to the 2013 consultation). The Association therefore invited the Commission to reflect more on “efficiency”, in particular in a context of budgetary reductions and insufficient support for justice systems (another reference to the austerity measures

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and structural reforms that affected the functioning of justice systems in some member states). In the same vein, the Greek Association of Judges and Prosecutors underlined the fact that justice should be an end in itself, not an “accessory” for economic growth or “any other interest” (Contribution to the 2013 consultation). The Greek association also referred to the legality of the measures adopted to save the euro, raising the question of respect for the rule of law at the EU level. Despite differences among member states with regard to the action to be taken at the EU level, participants were rather in favour of a new, robust, and comprehensive institutional framework at the EU level to enhance its ability to deal with the rule of law crisis in member states. With the exception of the Greek association of judges and prosecutors, which underlined the responsibility of the state, the majority of proposals either recommended using existing tools or creating new ones, but with a focus on rights in the two cases (see Table 8.2). In the 2013, Les Assises de la Justice consultation, civil society organisations sought to expand the framing of the rule of law concerns as proposed by the Commission, going beyond procedural aspects (i.e., the control dimension) to focus essentially (if not exclusively) on substantive aspects such as human rights violations, social welfare, excessive deregulation, or even legality, in reference to the decisions adopted to save the euro, also questioning the focus of the Commission on judicial systems through the lens of their contribution to economic growth (see Chap. 4). 2019 Consultation on the Rule of Law In 2019, the number of actors attending the Commission’s consultation increased, while the proportion of judicial associations was considerably higher (ten). More academics, universities, and civil society associations, including European Social Partners (European Trade Union Confederation, Business Europe, Craft and SMEs in Europe and CEEP), expressed their views on the questions addressed, governments being also active in expressing their positions. While the 2013 consultation had allowed civil society organisations and professional associations to propose different ways of framing rule of law violations requiring EU action, in 2019, the Commission focused its consultation mainly on procedural aspects such as how to monitor, assess, and protect the rule of law. Participants were invited to provide ideas about promotion, prevention, and response to strengthen the rule of law in the EU.

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The Question of Definition: What Is the Rule of Law Anyway? The importance of the rule of law was uncontested in the 49 contributions submitted by civil society organisations and academics. Yet many asked instead: what does rule of law mean in the first place? A few participants raised questions about the definition and even criticised the Commission’s narrow understanding of this principle. Arguably, this focus on the definition could be attributed to the increasing number of academics involved in this consultation, but also to the claim often made by representatives of the Hungarian and the Polish governments over the past decade, that the EU does not possess a definition of this common value. Andras Jakab, professor of Austrian and Constitutional Law at the University of Salzburg, argued in his contribution that the Commission seems to be “confused” about the meaning of the rule of law (Contribution to the 2019 consultation). The institution was therefore invited not only to propose a definition but also to develop its own benchmarks (unless it chooses to adopt a definition by other regional and international organisations or indexes). Other participants also criticised the choices made by the Commission in establishing a rule of law policy and neglecting to use the Charter of Fundamental Rights. Reminding the Commission of the definition provided by the Secretary General of the United Nations (see Chap. 1), the Council of Bars and Law Societies of Europe emphasised the need for a “clear definition and description of the concept, scope, and consequences of the rule of law”, inviting the Commission to establish a list of indicators which go beyond the procedural aspects of judicial independence to consider “effective” judicial protection (Contribution to the 2019 consultation). The International Commission of Jurists referred to its own definition of the rule of law, adopted in 1959, which goes beyond a thin understanding: the Rule of Law is a dynamic concept for the expansion and fulfilment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized. (International Commission of Jurists, Contribution to the 2019 consultation)

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The Rule of Law Substance: Rights and Social Welfare Think tanks and civil society organisations contended that the rule of law should not be limited to purely procedural dimensions. Academics, such as Marlene Wind, professor of Political Science at the University of Copenhagen, deplored the overly narrow focus of the Commission in addressing the issues at stake. Many stressed that the EU should not be “complacent with illiberal democracy” and should not turn a blind eye to the erosion of the freedom of speech, the attacks on universities, and changes to electoral rules. On this point, there was mostly consensus. In the same vein, the London-based Bingham Centre for the rule of law recommended to focus on attacks on media and press freedom, academic freedom, and civil society (Contribution to the 2019 consultation; Helsinki Committee, Contribution to the 2019 consultation). Condemning the Commission’s choice to structure the consultation around a limited number of institutional issues, European Trade Union Confederation (ETUC) insisted that the concept of the rule of law in the EU must include the protection and enforcement of fundamental social rights as they are enshrined in the relevant UN, ILO, and Council of Europe treaties and conventions, as well as the EU Charter of Fundamental Rights and the European Pillar of Social Rights, including, among others, the freedom of association and collective bargaining, the right to strike and industrial action, and bipartite and tripartite social dialogue practices. (ETUC, Contribution to the 2019 consultation)

Explicitly, ETUC deplored the “thin” concept promoted by the Commission (ETUC Contribution to the 2019 consultation). Most of the ETUC contribution was devoted to the rule of law assessment and the recommendations of the Commission in the European Semester (see Chap. 4), pointing out the importance of social rights and to violations in some countries, for example, Romania. In the same vein, the OECD emphasised that “the absence of the rule of law undermines people’s ability to claim their rights” and that “unequal access to justice may perpetuate existing inequalities” (OECD, Contribution to the 2019 consultation). Also taking a critical stance vis-à-vis a thin understanding of the rule of law, the International Bar Association (IBA) contended  that the rule of law provides “the basis to enable justice to be done and to provide the foundation for the achievements of social goals”, reminding the participants that “the simple existence of laws and their enforcement does not

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create the rule of law”. In its communication, IBA underlined the fact that the rule of law is not compatible with non-democratic regimes, insisting on the importance of protecting “fundamental individual rights” (International Bar Association, Contribution to the 2019 consultation). Control: Contrasting Views over the Rule of Law Governance Beyond Supranational Versus Intergovernmental Designs The design of policy instruments at the EU level has always oscillated between supranationalisation (i.e. empowerment of the Commission in terms of assessment, monitoring, and control) and the empowerment of the Council (intergovernmentalism), with a tendency towards hybridisation, that is a combination of both supranationalisation and intergovernementalism. As in the 2013 consultation, in 2019, some participants proposed new policy  tools, others suggested the Commission should emulate or cooperate more systematically with other regional and international organisations, in addition to the Council of Europe and the OECD, often mentioned in rule of law debates, to include the United Nations (and its Universal Review Procedure). As a general remark, Paul Blokker, professor at the University of Bologna, focused his contribution on the foundations of conditionality (as developed in the enlargement), arguing that such a one-sided approach put forward by the EU in the enlargement—which he calls in his contribution “a formalistic rule transfer”—has led to the “failures” observed in Poland and Hungary (Contribution to the 2019 consultation). As for the existing rule of law toolbox, some participants chose to focus on existing coercive tools such as Article 7 TEU, infringement proceedings, the Cooperation and Verification Mechanism (CVM), or Regulation 2020/2092. Others pointed out the need for new soft tools, not as an alternative to old coercive tools but rather to complement them. These included preventive tools (a Periodic Peer Review of the Rule of Law in the EU mainly proposed by member states; a Rule of law review involving the Commission and the Council; an Interparliamentary dialogue between the European Parliament and national parliaments or an Rule of law intergroup in the EP), coordinative tools (a Rule of law working party in the Council or the establishment of a Rule of law coordinator to ensure dialogue with other international/regional organisations, the involvement of National parliaments and of the Judicial networks representing the judiciaries—European Network of Judicial Councils; Netherlands Judicial

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Council), or redistributive tools to support the rule of law, combined with mechanisms for assessment and monitoring, some of them relying on independence and expertise, others proposing shared and inter-­institutional frameworks or even a more systematic involvement of regional and international organisations, such as the CoE and the United Nations. While some underlined the need for a coordinator at the top, the majority of the proposals supported the idea of a diffuse and diverse mode of governance. Legality at the Core of Dissensus While most of the contributions tended to tilt towards a more supranational vision of the EU’s rule of law tools, as opposed to an intergovernmental approach, only two participants denounced the action of the Commission as “biased” and “ideologically oriented”, contesting the legal basis of any attempt to establish new instruments at the EU level. Two Hungarian think tanks, Nezopont Intezet and Center for Fundamental Rights, condemned the lack of a definition and the overly abstract meaning of the rule of law. The Center underlined the fact that the “principle of the rule of law is an organizing principle of state and constitutional order” linked to national sovereignty (Contribution to the 2019 consultation). Like Nezopont Intezet, it maintained that even the rule of law dimensions emphasised by the Commission—legality, legal certainty, prohibition of arbitrariness of the executive power, independent and impartial courts, effective judicial review, and equality before the law—are vague, just like “the values enumerated in Article 2”, which “are political and philosophical categories in need of proper legal definition” (Contribution to the 2019 consultation). Nezopont Intezet lamented the “political” motivation of the Commission to sanction member states drawing on “inadequately prepared reports and accounts containing non-verifiable information”, in the name of the “protection of values” and “interpreting its own political powers broadly” (Contribution to the 2019 consultation). Echoing Fidesz’s attempts to discredit the action of the Commission and its legality, Nezopont Intezet, which presents itself as a “fact tank” rather than a think tank, offered a critical assessment of the Commission’s action Commission vis-à-vis Hungary. In the same vein, the Center for Fundamental Rights highlighted the fact that “the right of Hungary to determine its form of government and state structure” cannot be limited, even if the country “may exercise some of the competences arising from

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the Fundamental Law jointly with other Member States, through the institutions of the EU” (Contribution to the 2019 consultation). The Center—also echoing the claims of the Hungarian government in general and also those of the Minister for Justice, Judit Varga—disapproved of the development of instruments based on “abstract legal categories” drawing on “dominant leftist and liberal opinion leaders” (Contribution to the 2019 consultation). While the Hungarian think tanks deplored the Commission’s action and the lack of definition, in contrast, in the same consultation, the Polish government criticised the Commission’s attempts to “create uniform rule of law standards for all”, despite the diversity among member states. In the 2019 consultation, while there was an overwhelming consensus about calling on the European Union to act when values are at stake, there was dissensus regarding the raison d’être of the action. Yet, with the exception of the two Hungarian associations which focused on the legality of new tools, the contributions were rather in favour of more action at the EU level, yet more oriented towards the substance of the rule of law.

8.3   European Citizens’ Initiatives: Participatory Tools to Give Meaning to Rights? Introduced as an innovation of participatory democracy in the Lisbon Treaty, the European Citizens’ Initiative (ECI) seeks to give citizens a voice in shaping the EU policy-agenda, allowing one million nationals of a significant number of member states to invite the European Commission, within the framework of its powers, to submit an appropriate proposal on matters where citizens consider that a legal act of the Union is required (Article 11.4 TUE). For an ECI to be launched, a citizens’ committee should be established bringing together seven citizens from seven EU member states. The ECI should fall in an area of competence of the Commission and should not be contrary to the values set out in Article 2 TEU, nor violate the Charter of Fundamental Rights. Once submitted, the Commission plays an important role both ex-ante and ex-post: Ex-ante as the ECI has the right to accept or to refuse the registration of the ECI (Longo, 2019, p.  193). If the proposed ECI is registered by the Commission, for one year, citizens across EU member states debate about the proposed initiative with the aim of collecting one million signatures, with minimum thresholds reached in at least seven countries. Ex-post as,

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should the number of signatures collected, verified, and confirmed by the competent national authorities, the Commission examines the initiative to consider translating it into a legislative proposal, albeit with no obligation to act. As a new participatory tool, the ECI generated high expectations about the potential to absorb the EU’s democratic deficit and to create a European public sphere in which citizens debate issues of common interest. Since 2012, over 100 ECIs have been initiated, 78 registered by the Commission and 26 rejected, as they did not fulfil the legal conditions.2 Seven of them managed to mobilise successfully,3 collecting the required number of signatures (Weisskircher, 2020; Oleart, 2021). The vast majority of the registered ECIs are value-driven (Kandyla & Gherghina, 2018, p. 1227). Although they are introduced by a citizens’ committee, the successful ones (but not only) are backed by large organisations such as trade unions, pro-life organisations, environmental groups etc. (Bouza García & Greenwood, 2014), and are supported by multi-positional actors (Oleart & Bouza García, 2018), insiders or outsiders of EU policy-making, which often bridge the national and European arenas. Most of the submitted ECIs fall under the following policy areas: Environment and climate; Justice; Employment and Social issues; Education and Health. To a large extent the initiatives are consensual rather than contentious, in favour of more integration rather than less, or seeking to change the aims of some policies without altering the foundations of the Union. Two ECIs addressed the rule of law explicitly: the ECI Wake up Europe launched in 2015 and the ECI on the Respect for the rule of law within the European Union launched in 2019. Their framing was different. The former targeted the political situation in one member state, while the latter put forward an institutional procedure to deal with the rule of law at the EU level. The former had been taken out by the initiators because it was too contentious and the latter did not manage to collect enough signatures, perhaps because it was too abstract and narrow.

2  Accessed on 20/08/2021 https://www.europarl.europa.eu/factsheets/en/sheet/149/ european-citizens-initiative. 3  The ECI Right2Water on water and sanitation as human rights (1.659.543 signatures), One of Us (1.721.623 signatures), Stop Vivisection (1.173.130 signatures), Minority SafePack—one million signatures for diversity in Europe (1.123.422), BanGlyphosate, and End the Cage Age (1.397.113). STOP TTIP managed to reach 3.3  million signatures, a spectacular success in this regard.

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Wake up Europe: The 2015 ECI on Democratic Backsliding in Hungary In November 2015, a committee of nine citizens from seven EU member states launched an initiative called “Wake Up Europe!” in light of “the increasingly authoritarian policies of the Hungarian government and the inability of the EU to address the issue despite alarming reports from many human rights organisations”. As declared by the organisers in the text of the ECI,4 the objective was to “urge the EU to protect democracy in Hungary and help the government find its way back to founding values of the European Union”. The initiative5 was coordinated by the Fédération Humaniste Européenne (FHE) and its president Pierre Galand, who declared that as “humanists”, it is their duty to defend the “democratic European project” and to call on EU institutions to take action reminding Hungary of “the obligation to respect the democratic rules and values” (Kengen, 2016). The initiative was registered by the Commission but not without tensions inside the institution. The decision to accept this ECI was on the agenda of the college of commissioners, and it was taken in the absence of the Hungarian commissioner, Tibor Navracsics (EUObserver, 2015), who argued that this initiative was a “highly political issue” with broader implications. On 24 November 2015, the Commission concluded that the legal conditions for the registration of the ECI were fulfilled. The discussions in the college did not pass unnoticed in the European Parliament. On 21 December 2015, nine members of the Hungarian Fidesz party submitted a written question to the Commission asking the reason “for the unusual step” of including the ECI Wake Up Europe (2015)000005) on the agenda of the college, considering that the previous 50 initiatives had not been discussed in the same way and were adopted “via administrative channels”, the nine MEPs contended.6 In reaction, on 23 February 2016, Commissioner Timmermans on behalf of the Commission stated that the ECI Regulation 211/2011 “does not lay down any specific  http://www.act4democracy.eu (accessed on 17/11/2021).  It was introduced by a citizen committee including Pierre Galand (Belgique), Jean-­ Michel Ducomte, president of the Ligue de l’enseignement in France, Michael Bauer (Germany), Andrew Copson (UK), Panayote Dimitras (Greece), Andresj Dominiczak (Poland), and Giulio Ercolessi (Italy). 6  Question references: E-016062/2015, E-016063/2015, E-016064/2015, E-016065/2015, E-016098/2015. 4 5

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­rocedure as regards the internal decision-making process within the p Commission”.7 According to the initiators, Wake up Europe was well received in Hungary. It gave rise to discussions among individuals and organisations, including the cultural and artistic sector, as well as political and social actors. As Pierre Galand declared (EUObserver, 2015), the aim was to create a “civic mobilisation” to support democracy which was declining not only in Hungary but in other countries too. Despite the support received, after seven months, the organisers decided to close the ECI, arguing that the tool chosen—the ECI— “was not the appropriate way to address this sensitive and complex issue”. Arguably, one of the reasons leading to this decision was the danger of “stigmatising” the population of one member state, since many in Hungary perceived it as such, showing also the limits of politicisation of rule of law issues. Instead of pursuing the ECI, the organisers chose to “engage with citizens and grassroots organisations” to resist “the populist zeitgeist, by working every day, on the ground” and by identifying “civil society actors who strive for a better, inclusive and progressive Europe” (EUObserver, 2015). The 2019 ECI for the Respect for the Rule of Law Within the European Union In April 2019, when the Commission published its Communication on how to strengthen the rule of law, an ECI for the Respect for the rule of law within the EU was initiated. Its publication at the same moment as the communication of the Commission was a pure coincidence, yet the timing had consequences for the campaign. The initiative was aimed to create “an objective and impartial evaluation mechanism to verify the application of the European Union’s values by all the Member States” (ECI Respect for the rule of law within the EU). The proposal was rather institutional in nature. One plausible explanation is that the text originated with a group of European federalists with previous work experience in EU institutions, mainly in the EP, the Commission, and the Agency for Fundamental Rights based in Vienna. One of the proponents was Pier Virgil Dastoli, President of the European Movement Italy, who had many years’ experience in EU affairs. With a 7  Joint answer given by First Vice-President Timmermans on behalf of the Commission, 23/02/2016.

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degree in Law from the University of Rome (1971), he started his career in the 1970s as parliamentary assistant of MEP Altieri Spineli (1976–1983). When Altieri Spinelli was appointed president of the group “Independent Left” in the Italian Chamber of Deputies, Pier Virgil Dastoli was president of his cabinet (1976–1979). In 1993, Dastoli created a reflexion group on the development of the EU, called “Groupe Ardennes”, bringing together Italian haut fonctionnaires in EU institutions. Working at the Secretariat of the EP as administrator from 1988 to 2003, he closely followed the intergovernmental conferences leading to the revision of the treaties (Maastricht, Amsterdam, and Nice), and to the Convention establishing a Constitution for Europe and the Charter of Fundamental Rights. He served as Secretary General of the European International Movement under the presidency of Valéry Giscard d’Estaing and Mario Soares (1995–2001), as reported in the Historical Archives of the EU located at the European University Institute.8 Another prominent figure behind the ECI on the rule of law was Marco Cappato, Italian member of the EP in 1999–2004, member of the Italian Radicals, elected on the Lista Bonino, a group named for Emma Bonino, former Italian commissioner. He was also an activist for fundamental rights and liberties. Other Italian former civil servants were involved in the drafting of the ECI. Their aim was to put forward a proposal allowing EU institutions to act without changing the treaties (Interview, Virginia Fiume, 17 November 2021). Once drafted, the idea of the ECI was taken forward by a group of participatory democracy activists from EUMANS, under the coordination of Virginia Fiume. While the proposal as such was focused on narrow institutional aspects, EUMANS expanded its framing under the motto Act for Our Rights!, chosen in order to underline the importance of the rule of law in the EU and to give it concrete meaning. As Annalisa Anghelè, activist from EUMANS and supporter of ForMyRights.eu explained at the European Economic and Social Committee on 13 December 2019, the initiative9 was born not only from observing the situation in Central and Eastern Europe but also in reaction to the presently ineffective framework that the EU had to deal with rule of law deficiencies.  https://archives.eui.eu/en/isaar/107 (last accessed 17/11/2021).  The citizens’ committee at the origin of this ECI on the Respect for the rule of law in the European Union brought together Pier Virgilio Destoli, Marco Cappato, Martine Meheut, Gabriela Paula Poblet Denti, Tamás Lattmann, Jenny Elisabeth Paul, Michael Gábor Zichy, some of whom are active actors in arenas of participatory democracy in the EU. 8 9

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The explanatory note10 which accompanied the ECI called for the creation of an instrument of impartial and objective evaluation without replacing Article 7 TEU but placing the proposed framework in an impartial legal framework. The initiators pointed out the importance that both national and European parliaments be involved in rule of law-related issues, and also underlined the necessity of establishing an expert committee, which was not to be called the Copenhagen Commission (as proposed by the Parliament, see Chap. 5) but the “Trève Commission”, in reference to the European Law Academy in Trèves. Ultimately, the explanatory note insisted on the empowerment of the Agency for Fundamental Rights (FRA) based in Vienna, which they also believed should have a say in the proposed rule of law mechanism. The initiative received the support of several movements and associations promoting democracy and freedom, including the Movimiento Europeo Spain (which was established in 1949 to contribute to the creation of a united and federal Europe), Europa in Movimento (a network of activists aiming to build a popular front for the European federation), Europafederaliserna (a Swedish association also promoting a federal and democratic Union), and Movimento Europeo Italia(which brings together the voices of trade unions, parties, and associations committed to achieve European unity). Support also came from a group of associations promoting science and research, such as Science for Democracy and Associazione Luca Cosccioni, aiming to promote the right to science, freedom of research, and to affirm the rights of all persons, starting with the rights of disabled people. Yet, compared to other ECIs, the number of supporting associations was rather limited. In this network of movements and associations, EUMANS played a central role. As explained by Virginia Fiume, coordinator (22 October 2020), the overarching aim was to “connect citizens and institutions”, “to have a widespread debate”, to “help each other understand the benefits of a functioning rule of law and the dangers of being too easy on implementing it” (https://www.formyrights.eu/european-­citizens-­initiative). The organisers developed a wide range of activities both at the European and national levels. In Brussels, they attended several debates and conferences organised by the Group on Fundamental Rights and Rule of Law of the European Economic and Social Committee; they submitted petitions to 10  Available here https://europa.eu/citizens-initiative/initiatives/details/2019/000005_ en (Accessed 18/08/2021).

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the EP and presented them in front of the relevant parliamentary committee. At the national level, activists travelled to different member states. In October 2019, they organised a campaign in London with “the 3  million”, the largest grassroots organisation for EU citizens in the UK, established after the 2016 EU referendum to protect the rights of those who have remained in the country (Interview, Virginia Fiume, 17 November 2021). Some activists attended events organised by national associations and contribute to discussions. In January 2020, for instance, EUMANS president Marco Cappato travelled to Warsaw to support the March of Thousand Robes. The march had been organised by the Polish organisation Iustitia, following the decision of the PiS government to submit to the parliament a draft bill about the disciplinary regime for judges. The March of a Thousand Robes was the largest manifestation by the legal community in Europe, bringing together 30,000 protestors from across the country to campaign against the dismantlement of the rule of law by the Polish government (Interview, Judge Yavuz Aydin, 17 March 2021; Interview, Juge Monika Fra ̨ckowiak, 23 March 2021). Judges from 22 European countries (Italy, the Netherlands, Greece, Romania, Czechia, Belgium, Croatia, Norway, Latvia, Austria, Portugal, Bulgaria, Turkey, etc.) joined their Polish counterparts on a silent march of protest through Warsaw, “in an unprecedented public display of international judicial solidarity” (The Guardian, January 2020). In this context, the supporters of the ECI were able to organise some panels with citizens and judges from Poland, and human rights activists from Hungary and Italy, giving them the opportunity to debate about rule of law concerns and meaning. But the impact of this participation to the March on the ECI was limited. Organisers saw this ECI as a way to connect the dots, increasing cooperation not only between Brussels-based associations and groups but also with national groups and, more particularly, as in the case of the ECI on the rule of law, with citizens. Yet, for organisations which do not have large memberships or strong links with other national associations, mobilising citizens can be very challenging, as many activists involved in this ECI stated. Thus, from 8 April 2019, which marked the beginning of the collection of signatures, to 8 October 2020, only 13,607 signatures were collected. To be efficient considering their limited resources, activists tend to target one or several large member states (Weisskircher, 2020, p. 799). In the case of the ECI on the rule of law, the greatest number of signatures was collected in Italy, numbering 12,111 signatures (89% of the total),

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probably due to the involvement of the European movements supporting the initiative and the Italian origins of the initiators. The number of signatures only reached above 200 in Germany (285); while over 100 signatures were gathered in the UK (193), Spain (173), Belgium (141), Hungary (130), and the Netherlands (102), these also being the member states in which the rule of law often made the headlines in national media during the European elections in 2019 (see Ana Andguladze et al., 2021). In seven EU member states, the number of signatures was below 10, the lowest number being in Cyprus (4). An Unsuccessful ECI, a Failure? Obviously, reaching one million signatures “on paper is very easy, in reality it is very difficult” (Virginia Fiume, 30 May 2021). As Kalypso Nicolaidis and Petar Markovic have pointed out, “it is easier for the proverbial camel to go through the eye of a needle than for a launched ECI to be transformed into law”. Collecting one million signatures “requires budget, requires knowledge, requires energy and active participation if citizens. It is not about asking for a signature. It is about being on the street […], connecting with other organisations, finding multipliers … and this happens in an information void”, Virginia Fiume said, comparing the coverage of a protest in the media and the lack of information about ongoing ECI initiatives (European Economic and Social Committee on 12 December 2019). The initiators of the ECI on the rule of law sought to benefit from the support of large associations, but this did not materialise (Interview, Virginia Fiume, 30 May 2021). For EUMAS and for Virginia Fiume, as coordinator, this was the first ECI and the beginning of a learning process on how to deal with such ambitious campaigns. The ECI was launched before receiving support from larger organisations, with the aim of reaching out to them later. Although many argued that an ECI—even if not translated into concrete proposals by the Commission—still leads to positive results, some of the organisations feared that the lack of political impact would undermine their action. This was one challenge. Others were reluctant to join as they had not participated in the drafting of the ECI (Interview, Virginia Fiume, 17 November 2021). Another challenge, as explained by activists on the ground, was explaining the tool to potential supporters—as the ECI remains largely unknown, as many activists stated—and then having to explain all rule of law issues

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in the EU (Interview, Virginia Fiume, 30 May 2020). According to a 2021 YouGov survey, only 1.4% of German, 3,4% of Italian, 4.1% of Portuguese, and 1.5% of Fin citizens—giving an average of 2.4% for these four countries—are aware of the ECI instrument and know what it is (Policy Paper on the European Citizens Initiatives signed for Voters Without Borders for EU SIGN DAY). Is the inability to collect one million signature a failure? No, was the answer of Virginia Fiume (IEE, 22 October 2020), if the aim, among others, is to help develop the public sphere and consolidate European citizenship, by engaging with citizens beyond borders. From this perspective, the ECI is a long-term process and can have many different effects (Weisskircher, 2020, p. 799). The ECI incentivises organised civil society “to become much more outward-looking towards both their members and to civil society more generally” (Greenwood, 2012, p. 334). Activists involved in the ECI on the rule of law emphasised that its value goes beyond collecting signatures, as it allows transnational activists who share a common goal to bring together organised and non-organised actors in civil society (Virginia Fiume, IEE, 22 October 2020). The supporters of the ECI on the rule of law have lent their support to other ongoing initiatives dealing with media freedom, citizens’ rights, as well as an ECI entitled “Stop corruption in Europe at its root, by cutting off funds to countries with inefficient judiciary after deadline”. Another campaign, “Citizens take over Europe”, which demands a fundamental rethinking on how European democracy works, is a further example of an ECI which is supported by activists who were involved in the earlier initiative on the rule of law. The topic has remained on the agenda of EUMANS, which plans to organise its Congress in March 2022  in Warsaw, where judges and their association Iustitia have been proactive in denouncing the consequences of the dismantlement of judicial independence, in order to tackle this issue from a pan-European perspective which bridges rights and the rule of law.

8.4   Conclusion The emergence of an EU rule of law policy was not confined to institutional arenas. The issue has become a subject of public regulation and public discussion (De Wilde & Zürn, 2012, p.  139). The two arenas examined here—the consultations of the Commission organized in 2013 and in 2019, as well as the two ECIs launched in 2015 and 2019—attest

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to a certain visibility of the issue among a limited number of civil society actors and citizens at the national and EU level (although the number of those attending consultations doubled from 2013 to 2019, also revealing more diversity) as well as a polarisation of views. Consultations, because of their online format, were more prone to contestation and dissensus. Although they were contesting the narrow view of the Commission and its thin understanding of the rule of law, actors in the 2013 and the 2019 consultations emphasised the need for a substantive approach—focused on rights, legitimising the EU action in this regard. In contrast, only two actors (two Hungarian associations) expressed dissensus through the lens of legality to delegitimise the EU action. In contrast, the two ECIs framed the rule of law concerns from two different angles: one highly sensitive as the 2015 ECI Wake up Europe! pointed to the erosion of democracy in Hungary, the other one highly abstract as the 2019 ECI put forward a purely institutional proposal for a mechanism to allow EU institutional actors to address rule of law concerns in member states. While encapsulating the potential for conflict, both movements promoted consensus on the EU’s capacity to act when values are violated in member states. Both the ECIs and the consultations challenge the institutional agenda of EU actors by putting forward a more substantive understanding of the rule of law, calling for more focus on rights and less on thin understandings, and demanding more action too when values are undermined at the EU level.

References Ana Andguladze, A., Beyer, J., Coman, R., & Vander Meulen, J. (2021). Patterns of Politicisation in the 2019 European Elections: Salience, Polarisation, and Conflict Over EU Integration in (Eastern/Western) Media Coverage. In I. T. Haapala & A. Oleart (Eds.), Tracing the Politicisation of the EU The Future of Europe Debates Before and After the 2019 Elections (pp. 187–216). Palgrave Macmillan. Athanasiadou, N. (2019). The European Citizens’ Initiative: Lost in admissibility? Maastricht Journal of European and Comparative Law, 26(2), 251–270. Bouza García, L., & Greenwood, J. (2014). The European Citizens’ Initiative: A New Sphere of EU Politics? Interest Groups & Advocacy, 3(3), 246–267. Bunea, A. (2020). Understanding the European Commission’s Use of Politicisation in the Negotiation of Interinstitutional Agreements: The Role of Consultations and Issue Framing. Journal of European Public Policy, 27(3), 439–459. Coman, R. (2016). Strengthening the Rule of Law at the Supranational LEVEL: The Rise and Consolidation of a European Network. Journal of Contemporary European Studies, 24(1), 171–188.

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Contributions to the 2013 Consultation of the European Commission, Les assises de la justice. Contributions to the 2019 Consultation of the European Commission on the Rule of Law. Dallara, C., & Piana, D. (2017). Networking the Rule of Law. How Change Agents Reshape Judicial Governance in the EU. Routledge. De Wilde, P., & Zürn, M. (2012). Can the Politicization of European Integration Be Reversed? Journal of Common Market Integration, 50(S1), 137–153. EUObserver. (2015, November 20). Commission registers call for EU sanctions on Hungary. EUObserver. Greenwood, J. (2012). The European Citizens’ Initiative and EU Civil Society Organisations. Perspectives on European Politics and Society, 13(3), 325–336. Interview, Judge Monika Fra ̨ckowiak, 23 March 2021. Interview, Judge Yavuz Aydin, 17 March 2021. Interview, Virginia Fiume, 30 May 2020. Interview, Virginia Fiume, 17 November 2021. Kandyla, A., & Gherghina, S. (2018). What Triggers the Intention to Use the European Citizens’ Initiative? The Role of Benefits, Values and Efficacy. Journal of Common Market Studies, 6(6), 1223–1239. Kengen, Y. (2016, February). Laicité.be. From https://www.laicite.be/magazine-article/wake-up-europe-une-ice-a-ne-pas-laisser-refroidir/ Krastev, I. (2013). Democracy Disrupted. The Politics of Global Protest. University of Pennsylvania Press. Longo, E. (2019). The European Citizens’ Initiative: Too Much Democracy for EU Polity? German Law Review, 20, 181–200. Marshall, D. (2014). The International Rule of Law Movement. A Crisis of Legitimacy and the Way Forward. Harvard Law School. Human Rights Program Series. Nicolaidis, K., & Markovic, P. (2021). Ten Years Since the Adoption of the First ECI Regulation: Cause for Celebration or Concern? European Citizens’ Initiative Forum [Online]. Retrieved August 18, 2021, from https://europa. eu/citizens-­initiative-­forum/blog/10-­years-­adoption-­first-­eci-­r egulation-­ cause-­celebration-­or-­concern_en Oleart, A. (2021). Framing TTIP in the European Public Spheres Towards an Empowering Dissensus for EU Integration. Palgrave Macmillan. Oleart, A., & Bouza García, L. (2018). Democracy at Stake: Multipositional Actors and Politicization in the EU Civil Society Field. Journal of Common Market Studies, 56(4), 870–887. The Guardian. (2020, January 12). Judges Join Silent Rally to Defend Polish Justice. Weisskircher, M. (2020). The European Citizens’ Initiative: Mobilization Strategies and Consequences. Political Studiees, 68(3), 797–815.

CHAPTER 9

Ten Years on, What Then Is the Outcome? Consensus, Dissensus and Contestation over the Rule of Law

9.1   Introduction More than ten years have gone by since the rule of law became a bone of contention on the EU’s agenda. Three legislatures of the EP, more than 20 member states at the reins of the Council of the EU, 28 (27 after Brexit) heads of state or government in the European Council, prime ministers and ministers of European Affairs and Justice ministers, 3 presidents of the European Commission, and 3 presidents of the European Council have in many ways addressed (or avoided addressing) the very sensitive question of the lack of compliance with the values enshrined in Article 2 TEU. The final question is: what is the outcome? In Poland, at the moment of writing the PiS government is still pursuing its governmental plan in the field of justice and is not inclined to yield to the recommendations of the Commission on the independence of the judiciary. In October 2021, the vice-president of the Court of Justice of the EU ordered Poland to pay the Commission “a periodic penalty payment of €1,000,000 euros per day”, until it dismantles the disciplinary chamber of the Supreme Court of Poland and reinstates “unfairly dismissed judges”, one of the bones of contention in the dialogue with the Commission (CJCE, Case C-204/21 R, Commission v Poland). But soon after this decision, the Justice Minister Zbigniew Ziobro announced “further reforms”, seeking to strengthen “the independence of the judiciary” and © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4_9

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“to end the creation of judicial interests groups” (Politico, 16/11/2021). In contrast, Prime Minister Mateusz Morawiecki (PiS) declared that the disciplinary chamber will be dissolved, while the president of the Commission announced that it would not give its feu vert “to transfer €24 billion in grants and €12 billion in low-interest loans from the pandemic recovery” (Politico, 29/10/2021). However, Minister Ziobro (United Poland, a party that split from the PiS in 2012) retorted that he is less inclined to “make concessions” as, in his view, the demand  of the Commission is “lawless” (Politico, 28/10/2021). He presents himself as a “staunch opponent to the illegal blackmail of the EU carried out by the Court of Justice” (Rzeczpospolita, 5 August 2021), stating that Poland should not stay in the EU at any costs (Politico, 6 August 2021). The positions of the two sides—the Commission and the Polish government—have not become closer since 2016 when the Rule of Law Framework was launched (Chap. 4). Prime Minister Morawiecki even mentioned a “third world war” if the Commission were to delay the allocation of funds as part of the recovery budget (Financial Times, 24/10/2021). Returning to Brussels from Warsaw in November 2021, Commissioner Didier Reynders summarised his visit as follows: “we had the opportunity to exchange our points of view and to underline our differences […] There were also some expressions of kindness”, giving observers to understand that there was more disagreement than agreement on the independence of judges (Le Monde, 20/11/2021). Ten years on, policymakers in Brussels argue that the conflict with Poland is “unwinnable” (Politico, 19/10/2021). There is “no exit”, as stated by actors involved in the process that were interviewed for this book (Interview 7, Belgian diplomat, 23 July 2021). The Russian invasion of Ukraine has profoundly changed the EU’s agenda and priorities—institutional actors  being more focused on reducing its internal dependence and strengthening its external autonomy—relegating the debate on the respect of the rule of law in the member states to second place. In Hungary, the Fidesz party is also sticking to its position. The government pretends to be the “true” defender of EU values, including the rule of law, Viktor Orbán portraying himself as “the gatekeeper of a European society model” (Coman & Leconte, 2019, p. 862). In its letter to the EPP in June 2019, Fidesz underlined at least three elements separate them from “liberals”: their definition of the family, the defence of a Christian culture, and their stance vis-à-vis immigration, claiming that “vague and undefined concepts” related to values should be avoided if they are “not objective and legal arguments”. In their opposition to EU

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institutions, legality is invoked in all circumstances, just as it is in the Polish declarations quoted above. As different chapters in this book show, legality has become a new form of resistance to EU integration.  Winning a fourth mandate in the parliamentary elections in April 2022 and consolidating its two-thirds majority, Viktor Orban announced that his party politics in the EU “is not the past, this is the future” (EurActiv, 4/04/2022). Therefore, if the question is: “what is the outcome?” and the answer is to see whether or not concerns over respect for EU values have been alleviated, the chapter would end here with a short “no”. It is well known that the policy instruments did not reach their goals, either because of a lack of political will or because said instruments were imperfect to begin with (Kochenov & Pech, 2016). The piecemeal approach (Jones et al., 2015) in dealing with rule of law concerns at the EU level has not yet resulted in a return of Poland or Hungary “to the status quo ante” (Łacny, 2021), nor in restoring the institutional arrangements that were revised by governments seeking to dismantle the political order established after 1989. The EU’s response has been slow to come. The issue has been divisive, both within and among institutions. As discussed in this book, it took the EP eight years to trigger Article 7 TEU against Hungary (see Chap. 5), while the Commission (see Chap. 4) has preferred to use infringement proceedings and the Council (see Chap. 6) remained silent until it became too difficult to ignore the elephant in the Justus Lipsius (Council building). Both the Hungarian and the Polish governments have written extensive reports to contend that their actions are not a departure from EU values and principles (The Chancellery of the Prime Minister of Poland, 2018; Hungarian Government, 2018). Yet neither the Commission, nor the Parliament seem convinced. For its part, the Court of Justice has had to deal with a significant number of cases, shedding light on wrongs to be corrected and, by the same token, on the core values and principles under debate. In November 2021, the Commission, which has not yet applied Regulation 2020/2092 despite the EP’s insistence, sent letters to both governments, once again raising questions about the lack of independence of judges, with a focus on the rulings of the Constitutional Tribunal in Poland and the issue of judicial review and the protection of judicial independence in Hungary. On 5 April 2022—two days after the electoral victory of Fidesz in the parliamentary elections in  Hungary and  after reviewing the response of the Hungarian government to the informal letter sent in November 2021—Ursula von der Leyen  announced in the European Parliament that the Commission will send a formal letter to start

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the conditionality mechanism (Regulation 2020/2092) in order to prevent the misuse of EU funds in Hungary.  While the outcome on the ground is yet to come, there are nevertheless some findings worthy of attention. Not only is a rule of law policy emerging—understood as a set of soft and hard tools—it is also one which touches on the core of state powers (Genschel & Jachtenfuchs, 2014) and which has been shaped not “by stealth” but publicly through contestation and dissensus. Drawing mainly on content analysis, debates in different arenas have been analysed: in the Commission, as guardian of the treaties and defender of the interest of the Union; in national and European parliaments, as defenders of the interests of citizens; in the Council and the European Council, where governments defend national interests, and ultimately, within Brussels-based organised civil society. For each arena, I have tried to show how contestation and dissensus shape not only the EU’s rule of law policy in terms of soft and hard tools but also power relations and the ability to reach compromises. Or, put differently, how tools are shaped by power relations and, how, unsurprisingly, the ideas of the powerful tend to prevail, as some actors have more power than others to stick to dissensus, voice contestation, or bridge compromises. To capture what triggers contestation, consensus, or dissensus over the rule of law, the concept has been disentangled in four dimensions: legality, control, consent, and substance (Chap. 2). Following this analytical grid, each chapter of the book has scrutinised how EU institutional actors have sought to ensure compliance with the rule of law by designing a series of soft and hard policy tools or by resorting to existing ones such as Article 7 TEU or infringement proceedings. I summarised the book’s findings in five points, concluding that: first, what is at stake is a twofold foundational conflict of a new type because it challenges both the bases of domestic political regimes and those of the Union (Sect. 9.2). Second, the rule of law has always been a disputed concept. If it has been taken for granted in the past, this is no longer the case. On a normative note, maybe dissensus opens a window of opportunity for the concept to be discussed seriously. While dissenters reject the idea of reconfiguring the rule of law at the supranational level, on grounds of legality above all but also by pointing out issues related to consent and control, but neglecting the more substantive dimensions (rights), contesters, in contrast, put forth different ways of reconfiguring the rule of law beyond the state, without questioning legality, but rather by advocating different views about control, consent, and, depending on the arena,

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substance. Consensus is the compromise which comes from the clash between contesters and dissenters, when and if they manage to accommodate their positions (Sect. 9.3) raising the question who governs? (Sect. 9.4). Third, consensus results in a rule of law policy that is piecemeal and yet touches on core state powers and assesses the authority of the EU visà-vis its member states. There is an emerging definition of the rule of law rooted in the foundations of the EU.  While there is a definition in the making, it is more formal than substantive in its content. Substance seems to be relegated to second place, because of dissensus and contestation and the path-dependent development on the EU’s rule of law policy, anchored in its economic foundations (Sect. 9.5).

9.2   A Twofold Foundational Conflict The process of integration has been shaped by different kinds of conflicts and resistances (Crespy & Saurugger, 2016). It has been built step by step, alternating moments of stagnation, spill-over or spill-back (Schmitter, 1971), sometimes reflecting the preferences of its member states, at other times reflecting those of supranational institutions. Despite their diverse socio-economic interests and policy preferences, member states managed to accommodate their differences, reach compromises, move forward à géométrie variable, bargain their participation in specific policy areas, and confront their views on quasi constitutional issues during the revision of the treaties. Not with the best outcomes, but nevertheless “failing forward” (Jones et al., 2015). What is at stake in the case under consideration, I argue, is more than a classic clash between national and supranational institutions, specific to EU integration; it also goes beyond a simple conflict between a federal and an intergovernmental vision for Europe, or an institutional conflict over power and authority like many others in the history of the EU. This is a foundational conflict (Bickerton et  al., 2022), in the sense of a conflict over the constitutive principles of the polity. It is a high politics conflict triggered by the ambition of the PiS and Fidesz governments to replace the political regimes established after the collapse of communism, through a constitutional change in Hungary and the violation of the Constitution in Poland. What is more, it is a dual foundational conflict as it also touches the core foundations of the EU, its values and principles of political organisation. The contentious character of these events is divisive by excellence because it concerns a core pillar of the state and, at the same time, a core

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pillar of EU integration, both of which are shaped by the rule of law. At a very general level, this book shows that the rule of law debate in the EU polity is about sovereignty, power, authority, and legitimacy above all else. Or, in other words, the emergence of a rule of law policy has been fraught with conflict because the boundaries of sovereignty, power, and authority are not only contested but also porous.

9.3   Contesters, Dissenters, and Consenters: What Are They Fighting for? The concept of rule of law has been disputed since its first mentions by Antique, medieval, and modern philosophers. The normative foundations of this principle are not only old but also intellectually rich and diverse (Chap. 2). While the first liberal scholars saw the rule of law as “the cornerstone of liberty” (Hayek, 2001), a promise for freedom and equality, from a (radical) left perspective, in reaction, the rule of law was feared to be conducive to the opposite, to inequality and forms of domination (Tamanaha, 2004, p. 74). The concept has evolved over time and space (Craig, 1997). Every political context has left its mark, and this has resulted in the rule of law becoming not only polysemic but also multi-layered, covering many other principles. While some scholars believe the rule of law is “one of the many virtues that a legal system must possess” (Raz, 2012, p. 219), others think it has become “the” most important political ideal. The compounded character of this old ideal is illustrated by the different focuses of those who seek to define what it encapsulates. Indeed, scholars have either emphasised its formal or “thin” understanding or have focused instead on its substantive or “thick” dimension (Moller & Skaaning, 2014; Craig, 1997). More recently, it has been argued that this distinction is artificial, as the formal qualities of the law—legality, legal certainty, and so forth—cannot be dissociated from its content and from the idea of justice (Allan, 2003). The rule of law is more than “rule by law”, which in an “empty tautology” since every modern state is governed by law (Tamanaha, 2004, p. 92). It is not an end in itself but “a means to an end” (Tamanaha, 2006). This key principle cannot be dissociated from democracy (that is consent or who determines the content of the law) and rights (individual rights and/or social welfare) (Tamanaha, 2004, p. 90). In this regard, Raz, who restated that the rule of law should not be confused with democracy, justice, equality, or human rights (p.  211), contended that

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a non democratic legal system, based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and racial persecutions may in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law. (Raz, 2012, p. 211)

In the rule of law debate in the EU polity contesters, dissenters, and consenters: what are they fighting for? Dissensus, I conclude, mirrors a clash between liberal and anti-liberal ideas (Coman & Volintiru, 2021), pitted against each other irreconcilably. It is the expression of a frontal critique targeting the foundations of the EU, the power, and authority of its institutions as well as the principles and values of liberal democracy. Contestation is different from dissensus in the sense that it does not target the ontological foundations of the political regime. It is rather what happens in any democratic regime when actors disagree over different ideas, without contesting the core foundations of the regime itself. Consensus over the rule of law has often been taken for granted. This was particularly true in the aftermath of the collapse of communism, when democracy was proclaimed triumphant and when the rule of law, abused in the Soviet-era popular democracies, became a beacon of hope. This book has shown that consensus is also what results from the confrontation between the dissensus and contestation voiced in all EU institutional arenas and that it can lead to mitigated outcomes. Since the 2010s, dissensus has been voiced in the EP (Chap. 5) and has been echoed in the Council (Chaps. 6 and 7) and, to a lesser extent, within organised civil society (Chap. 8). Dissenting is not only a form of resistance to the configuration of the rule of law beyond the state, but also a challenge to the EU’s legality in this area tout court. In a debate about the weakening of the rule of law at the domestic level, dissenters change the focus of the discussion to question the rule of law in the EU itself. Dissenters have not changed their position over time, they have kept their core arguments constant in normative terms; it is just the number of dissenters that has slightly decreased over time. Dissensus initially found broader support in the EP among the radical right and radical left groups (both sides being slightly divided), within the ECR group (also divided) and, for at least the past eight years, within the EPP. Back in the 2010s, the EU’s authority to act—when Hungary revised its Constitution, limited the independence of the Constitutional Court, and dismissed a significant

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number of judges—was strongly contested by the EPP to which Fidesz belonged at the time. The EPP was discursively allied to the “untidy” right, questioning not only the power of the EU but also that of the EP to debate what many members from these groups saw as being “domestic affairs”. Once the EPP detached from Fidesz, dissensus decreased, or at least its voting power in the EP did. This allowed the EP to adopt its report to establish a comprehensive EU mechanism safeguarding democracy, the rule of law, and fundamental rights and to trigger Article 7 TEU against Hungary. Depending on the issues at stake, dissensus is still voiced by the EPP (depending on the issues at stake), by the ECR and radical rights groups, and unevenly by some members of the GUE, in the name of the sovereignty of the people against what they portray as an undemocratic Union (Chap. 5). Dissensus has also been voiced by MEPs from Central and Eastern Europe and Southern Europe, regardless of their political affiliation. Yet in the EP, dissensus along geographical lines is neither stable nor powerful. It plays a greater role in the Council. Within organised civil society, dissensus was expressed only by Polish and Hungarian think tanks in the Commission’s consultations of 2013 and 2019 (Chap. 8). Dissensus in the Council and vis-à-vis the Commission has been expressed by contesting legality, taking the form of an outright rejection of the actions of the EU’s institutional actors. The silence of Central and Eastern European member states in the hearings related to Article 7 TEU also can be understood as an expression of dissensus (Chap. 6). The Rule of Law Framework is one compelling illustration, as is the legal basis of Regulation 2020/2092. Contesting legality has had consequences for the framing of the tools (see Regulation 2020/2092) and on the actions to be taken. Legality was also invoked when the EP triggered Article 7 TEU against Hungary. The Resolution was challenged before the CJEU (Case C-650/12 Hungary v. Parliament) as Hungary contested the vote tabulation but the Court dismissed Hungary’s action, arguing that the calculation of votes when the resolution was adopted was correct. Pure dissensus has been voiced mainly by the governments of Poland and Hungary and their parliaments. Yet the arguments of dissensus did not leave the delegations of other member states in the Council indifferent. It has been also nurtured by the Legal Service of the Council’s conservative approach (Chaps. 6 and 7). In the end, dissensus has triggered discussions that have alleviated the concerns of some delegations and amplified the fears of others.

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Contestation, in contrast, is expressed in different ways, none of them disputing the power of the EU and the authority of its institutions. When looking at this aspect of the debate, the book is not only considering the position of the governments of Poland and Hungary. Contestation has been voiced in all institutional arenas, including within organised civil society, with different policy options being put forward to safeguard the rule of law at the EU level (Chap. 8). If they were diverse in how they proposed to refine the EU’s rule of law policy, they have converged on the idea that such a policy beyond the state should exist. In other words, contestation is the expression of disagreements which do not question the opportunity of acting at the EU level but rather focus on how to do it. For this reason, the substance of contestation is more diverse than that of dissensus, which is only the expression of a clash between antagonist views, a rejection of any attempt to reconfigure core powers beyond the state. Legality has been less challenged by contesters, regardless of the institutional arena, who have rather focused on other rule of law dimensions, such as control, consent, and substance. In the EP, contestation has been expressed by all the political groups who favour a more ambitious rule of law policy. They have challenged both the Commission and the Council to democratise the Rule of Law Framework, in different ways, either by involving both national Parliaments and the EP or by setting up an expert body. MEPs have sought to go beyond the procedural aspects of the rule of law, to tackle its substance, that is fundamental rights. The Greens/EFA, Renew, the S&D group, and some members of the GUE/NGL have put forward ideas to that end which have gradually received the support of the Christian Democrats, often divided on fundamental principles and values. Contestation has been also voiced in the Council, when some member states invited the Commission to either review its assessments and recommendations as part of the European Semester or in the Commission’s bilateral relations with member states (Chap. 4). It was not the process as such that was contested, nor the evaluations of the quality, efficiency, and independence of the justice systems included in the EU Justice Scoreboard. What was debated was the scope/substance of the reforms and their degree of prescription. Concerns were mainly raised by member states from Central, Eastern, and Southern Europe. This reveals that, in most cases, the member states driving the rule of law agenda at the EU level are those which do not “fear” any possible action against them. To a large extent, this corresponds to the old EU15 (minus South-Eastern Europe),

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countries which have not received recommendations from the Commission to improve the efficiency or independence of their justice systems as part of the European Semester drawing on the EU Justice Scoreboard. Contestation was also voiced within organised civil society both in the 2013 and in the 2019 consultations  organised by the European Commission. Participants questioned the meaning of the rule of law and put forward a more substantive understanding of it while also being rather favourable to more action at the EU level, as illustrated by the two European Citizens’ Initiatives (Chap. 8). It has been intriguing to see a more critical organised civil society attending the Commission’s consultations, challenging its actions and questioning its normative choices and, at the same time, make an attempt to empower the EU through ECIs. Both consultations and ECIs in fact show support for more integration in core powers. As dissenters and contesters have confronted each other in institutional arenas, consensus has been difficult to reach. Article 7 TEU exemplifies this perfectly, a situation from which there seems to be no exit at the moment of writing. Another illustration is Regulation 2020/2029, which resulted in a mitigated consensus in the Council under the German rotating presidency of the Council. To be able to reach an agreement and keep it, compromises over compromises had been made (Chap. 7), to the disappointment of both contesters and dissenters as the outcome tend to be “sub-optimal” emerging from the “joint decision trap” (Scharpf, 1988). This is because, in a context of increased contestation and dissensus, soft tools trigger as much resistance as hard ones.

9.4   Who Governs? Both soft and hard rule of law policy tools have been shaped by complex power relationships between and within each institution. The European Council is the winner who takes all (Chap. 7), casting a shadow over its role in EU decision making, as it explicitly instructs the Council and the Commission, thus confirming the assumptions of the new intergovernmentalists (Bickerton et al., 2015). Delegating new powers to supranational institutions only occurs as a lower common denominator in bargaining among member states (Moravcsik, 1998), each pursuing its vision of EU integration and its interests when fearing the consequences of an EU action related to non-compliance with the rule of law. The EU rule of law policy has been shaped by a group of agenda setters in the

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Council, mainly including Belgium and Germany, Austria, Finland, Denmark, Sweden, and the Netherlands. Some member states have been proactive in advocating for more integration of core powers, not only for idealistic reasons such as the often-proclaimed attachment to values but also to avoid negative policy externalities. Against this trend, Poland and Hungary have been the most vocal dissenters, while the group of contesters included to varying degrees Southern member states, Central and Eastern European countries, the Baltic states, Malta, and Cyprus. Germany’s role was key, in particular in setting forth a compromise which ultimately allowed the adoption of Regulation 2020/2092 (Chaps. 6 and 7). Until the very end of her mandate as German Chancellor, Angela Merkel sought to “keep Europe together”. This has been her credo, as she stated in her speech at the College of Europe in Bruges back in 2011, when she presented “the Union method”. This method, she argued, was meant to overcome antagonisms and secure two major projects: the euro and freedom of movement in the Schengen area. “Both projects were not prepared for shocks. I admit that we are not yet as far along in securing the Schengen area as we are in securing the euro area”, she said (Politico, 23/10/2021). Maintaining unity comes at a price, in particular when it comes to using the tools designed to safeguard the rule of law in the EU, such as Regulation 2020/2092. From the first days in power in December 2021, the new German Chancellor Olaf Scholz and his government announced the ambition of seeing the rule of law concerns with Poland and Hungary solved, urging the Commission to use existing tools more consistently and “in a timely manner” (German Coalition Agreement, 2021). The rule of law policy cannot only be explained by looking at the role of member states in the Council and the European Council. The EP, the Commission, and the Court of Justice have also played a key role. The EP extensively debated concerns over the rule of law in EU member states and called on them to respect of democracy, the rule of law, and fundamental rights. The Commission sought for its part to strengthen its expert power, as predicted by the new supranationalists, through monitoring and assessment, acting as a key agenda setter when providing important recommendations to safeguard the rule of law as part of the RLF or to improve the efficiency and independence of national judicial systems (as part of the European Semester and the EU Justice Scoreboard). The EP has called for more integration in a polity of values which are not only enshrined in the treaties but also enforced, while the Commission, as guardian of the treaties, also calls for more integration in the name of

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greater European efficiency and effectiveness, an objective for which the independence and efficiency of national judicial systems is of a paramount importance. If there is no respect for the rule of law in a community shaped by law, the entire edifice is unsteady. To avoid this risk, the Commission has managed to establish its expert and procedural power, with the support of member states, despite the fact that the legality of the tools proposed had been often contested. The EP in contrast, although proactive in adopting resolutions on the situation in EU member states and an own-initiative report proposing the establishment of a mechanism on Democracy, the Rule of Law and Fundamental Rights, did not manage to gain substantial power for itself. It did however manage to trigger Article 7 TEU against Hungary—despite the reluctance of the Commission and the silence of the Council—and to support the action of the Commission once Article 7 TEU had been triggered against Poland. Despite its active role and gradual empowerment with each revision of the treaties, the EP has remained in a weaker position (Costello & Thomson, 2013) in the ordinary legislative procedure vis-à-vis the Council, subordinated in turn to the European Council, to which the president of the Commission belongs.

9.5   From Soft to Hard Policy Tools and from Governance to More Integration in Core State Powers Ten years of debates allows one to conclude that the EU has moved from a diffuse rule of law governance—whose origins go back to the Eastern enlargement and the initial translation of the Copenhagen criteria into more or less concrete prescriptions—to harder tools and new forms of conditionality concerning all member states. The former “by stealth”, the later “by publicity” (Genschel & Jachtenfuchs, 2014). This is an illustration of gradual integration through the “hardening of a policy” (Terpan & Saurugger, 2021, p.  23), when soft tools (e.g. the CSRs as part of the European Semester or the RLF, guidelines and benchmarks in the EU Justice Scoreboard) are complemented by harder instruments (e.g. Regulation 2020/2092). Soft tools are meant to be used in the preliminary stages, before hard tools are triggered. Yet the recently created tools have limitations that have been emphasised by several scholars (Kochenov & Pech, 2016; Closa, 2016). However,

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I conclude that some of these instruments have been attempts to strengthen the EU institutions’ legitimacy in terms of input and throughput (Schmidt, 2020)—that is, what comes between input (who decides) and output (what to decide), in other words, how to decide—and precisely because of dissenters contesting legality. While prior to  the establishment of these tools EU institutions relied on external collaborations for assessment and monitoring (in particular with the Council of Europe), the book shows that the current rule of law policy is anchored in the Union polity. Tools such as the Rule of Law Framework, that scholars deplored as being but a modest step in the right direction (Kochenov & Pech, 2016), or the EU Justice Scoreboard were meant to fill in the gaps of the EU’s rule of law policy, to allow the Commission to objectify evaluations and assess domestic situations. This strengthens the Commission’s legitimacy through expertise, thus leading to a comprehensive monitoring of the judicial systems of EU member states and of the threats to the rule of law. Every EU institution forged its own instruments, drawing on its own legitimacy, either to use them as an alternative to Article 7 TEU or as a preliminary assessment (Closa, 2020). On the side of hard tools, infringements have been increasingly used, while member states remain “lost” in Article 7 TEU. The regime of conditionality introduced by Regulation 2020/2092 is still  to be applied by the Commission, following  the confirmation of its validity by the Court of Justice on 16 February 2022 (C-156/21 and C-157/21) and the adoption on March 2022 of the guidelines required by the European Council in December 2020. It is also important to note that when tracing the origins of EU instruments, scholars have often argued that policy tools result from processes of circulation and diffusion from the domestic to the supranational level or are emulated from instruments developed by other international actors (Halpern & Le Galès, 2011, p. 55). The book shows that the EU’s rule of law policy is not disconnected from evolutions in other regional organisations such as the Council of Europe (CoE). Some policy tools emulate tools designed by the CoE (e.g. the EU Justice Scoreboard). In addition, not only is policy innovation scarce, the Commission has a tendency to act by using existing instruments for new problems. For example, the European Semester emerged in 2011 as a tool put forward by the European Council to douse the flames of the Eurozone crisis. Designed to strengthen the coordination of economic, fiscal, and budgetary policies, it has been used by the European Commission to deal with rule of law concerns.

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Last but not least, the definition  of the rule of law put forth by the Commission in its communications and legislative proposals gained in legitimacy not only by being the outcome of debates in the EP and in the Council but also by drawing on the case law of the Court of Justice (Chap. 7), whose rulings on the matter have increased in numbers over the past decade. Respect for the rule of law is a structural obligation (Pohjankoski, 2021), as multiple EU provisions require it, while Article 19 TEU gives it its most concrete expression. This obligation “binds” member states, including when they are not applying EU law strictly speaking (Pohjankoski, 2021). To conclude, while the outcome in terms of change within member states does not alleviate the concerns of the civil society, the Commission, the Parliament, the Court of Justice, and the majority of member states in the Council, in terms of policy, ten years of debates over the rule of law have led to more integration, if by integration we understand “the attainment within an area of the bonds of political community, of central institutions with binding decision-­ making powers and methods of control determining the allocation of values” (Harrison, 1974, p. 14). This form of integration finds its clearest expression in Regulation 2020/2092 which establishes a general regime of conditionality for the protection of the Union budget, not “by stealth”—“that is with little media attention, no political debates and no attempts by relevant actors to claim power” (Genschel & Jachtenfuchs, 2014, p. 9)—but “by publicity” through the ordinary legislative procedure in a context of increased contestation and dissensus. The authority of the EU is thus strengthened vis-à-vis its member states, the procedure put forth in the Regulation to deal with breaches of the principles of the rule of law empowering the Commission to propose and the Council to adopt measures when such breaches in a member state affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way. The emergence of this conditionality regime is an illustration of a spill-over process, as the Regulation establishes a clear link between the implementation of the budget and the rule of law, due to the functional interdependencies between policies and across borders. As Genschel and Jachtenfuchs put it, “the higher the probability of domestic core states powers having repercurssions on other member states, the higher the demand for European regulation of these powers” and for capacity building at the EU level (2014, p. 12). Spill-over is understood here as the way in which the creation and deepening of integration may

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generate pressures for further integration and greater authoritative capacity at the European level (Rosamond, 2000, p. 60). Ultimately, the exercise of core state powers is no longer “a purely national affair” (Genschel and Jachtenfuchs, 2014, p. 8). The EU’s rule of law policy shapes “European core state powers”. Through hard and soft rule of law policy tools—although imperfect like many other tools in the history of European integration—EU institutional actors have established the Union’s core power and its relationship with member states, not “by stealth”, but “by publicity” (Genschel & Jachtenfuchs, 2014), drawing on multiple legitimacies, in a complex process bringing together majoritarian and non-majoritarian institutions as well as organised civil society, with different views on the issues at hand. In the EU polity, the rule of law policy examined in this book is the outcome from the clash between liberal and anti-liberal ideas, between dissensus and contestation over how collective problems should be solved, in a community of voices, featuring assent and dissent, all of which give democracy its substance. What I hope this book makes clear is that, although a new rule of law policy has emerged through an incremental institutional development, the compromises reached have not lessened the sources of dissensus. The bones of contention have remained and with them the potential for further conflict, while the question of enforcement is still open. 

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Rosamond, B. (2000). Theories of European Integration. Palgrave Macmillan. Scharpf, F. (1988). The Joint Decision Trap: Lessons from German Federalism and European Integration. Public Administration, 66(3), 239–278. Schmidt, V.  A. (2020). Europe’s Crisis of Legitimacy. Governing by Rules and Ruling by Numbers in the Eurozone. Oxford University Press. Schmitter, P.  C. (1971). A Revised Theory of European Integration. In L. N. Lindberg & S. A. Scheingold (Eds.), Regional Integration: Theory and Research. Harvard University Press. Tamanaha, B. Z. (2004). On the Rule of Law. History, Politics, Theory. Cambridge University Press. Tamanaha, B. Z. (2006). Law as a Means to an End. Threat to the Rule of Law. Cambridge University Press. Terpan, F., & Saurugger, S. (2021). Soft and Hard Law in Times of Crisis: Budget Monitoring, Migration and Cybersecurity. West European Politics, 44(1), 21–48.

index

A Agency seeking, 99 Agenda setting, 99, 101 Agenda-setter, 90, 98, 101 Amnesty International, 248 Annual Rule of Law Report, 13 ANO 2011, 6, 135, 158 Anti-liberal ideas, 2, 7, 8, 15 Aristotle, 1, 37 Article 19 TEU, 206 Article 7 TEU, 76, 80, 83–86, 90, 102, 103, 114–117, 120–122, 175, 176, 178, 200 Article 7 TEU, Council, 184 Article 7 TEU, Council, Hungary, 172 Article 7 TEU, Council, Poland, 172 Article 7 TEU, EP, 130, 143, 144, 147, 166 Article 7 TEU, EP, Hungary, 138, 142–146 Article 7 TEU, EP, Malta, 153–155 Article 7 TEU, EP, Poland, 135, 157

Article 2 TEU, 81, 114, 115, 179 Associazione Luca Cosccioni, 259 Austria, 85, 103, 129, 177 Austria, Presidency of the Council, 181, 187, 188, 216 Authority, 11, 114, 197 Aznar, José-Maria, 82 B Babiš, Andrej, 6, 158 Barroso, José Manuel, 23, 25, 98, 102, 106, 137, 244 Basescu, Traian, 5, 149 Belgium, 111, 176, 177 Benelux, 174, 176, 177 Berlusconi, Silvio, 4, 82 Bettel, Xavier, 177 Bill of Rights Act, 40 Bingham Centre, 251 Bodin, Jean, 43 Borissov, Boyko, 6, 185

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 R. Coman, The Politics of the Rule of Law in the EU Polity, Palgrave Studies in European Union Politics, https://doi.org/10.1007/978-3-030-97367-4

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INDEX

Bulgaria, 130 partisanship, 133 Bulgaria, Presidency of the Council, 185, 186 “By publicity,” 279 “By stealth,” 278 C Caruana Galizia, Daphne, 6 Center for Fundamental Rights, 253 CEPEJ, 104, 105 Charter of Fundamental Rights, 248, 250 Chirac, Jacques, 82 Coalitions, EP, 134 Coalitions, member states, 175 Community of values, 80 Conditionality, 198, 252 Conditionality, economic, 198 Conditionality, political, 198 Conflict, 2, 7, 8, 15, 16, 269 Conflict, foundational, 269 Consensus, 15, 16, 30, 269, 274 Consenters, 174, 176 Constitutional Court, Bulgaria, 53 Constitutional Court, Hungary, 3, 53 Constitutional Court, Romania, 5 Constitutionalisation, 10, 42, 75, 78, 79, 90, 97 Constitutionalism, 44, 47 Constitutional pluralism, 10 Constitutional Tribunal, Poland, 3, 6, 9, 118 Constitutions, historical, 47 Constitutions, legal, 47 Constitutions, post-totalitarian/ post-authoritarian, 47, 48 Consultation, 2013, 247, 249, 252 Consultation, 2019, 249, 254 Consultations, European Commission, 242, 243, 246

Contestation, 15, 16, 59, 273 Contestation, rule of law, 62 Contesters, 174 Convention on the Future of Europe, 81 Cooperation and Verification Mechanism, 5, 110 Copenhagen Commission, 160 COREPER, 112, 113, 175 Council Legal Service, 22, 114, 115, 185, 196, 208–210, 218 Council of Bars and Law Societies of Europe, 250 Council of Europe, 54, 56, 77, 89, 102–104, 117, 119, 248, 252, 277 Crisis, 11 Critical juncture, 101 CSR, 104, 107–112, 166 Czechia, 130 partisanship, 133 D Danish Institute for Human Rights, 248 Dastoli, Virgil, 257 Declaration of the Rights of Man and of the Citizen, 48 Declaration on European Identity, 78 De-Europeanisation, 6 Deliberation, 15 Demoïs, 76 Denmark, 116, 171 Dicey, Albert Venn, 40 Dissensus, 15, 16, 29, 30, 59, 268, 271, 272 Dissensus, rule of law, 61 Dissenters, 174, 175 Dragnea, Liviu, 5, 6

 INDEX 

E East-West divide, 20, 143, 147, 148, 154, 158, 168, 178, 192 Economisation, 99, 109 Emergency brake, 222, 224, 226 Empowerment, courts, 50 Estonia, 103, 178 Estonia, Presidency of the Council, 181, 185 Etat de droit, 42 EU Justice Scoreboard, 13, 17, 99, 102–105, 108, 109, 122, 244 EUMANS, 258, 262 Europa in Movimento, 259 Europafederaliserna, 259 European Association of Judges, 248 European Citizens’ Initiative, Respect for the rule of law within the European Union, 245, 255, 257 European Citizens’ Initiative, Wake up Europe, 245, 255 European Citizens’ Initiative, 25, 29, 242, 254 European Convention on Human Rights, 54, 56, 79 European Council, Copenhagen, 78 European Council, December 2020, 230–232, 234 European Council, July 2020, 219–222 European Movement Italy, 257 European Semester, 13, 17, 99, 102, 106–110, 112, 122, 165 European Social Charter, 79 European Trade Union Confederation, 251 Ever closer union, 79 Expert Panel, 166, 214, 227, 259 F Fédération Humaniste Européenne, 256

285

Fence-sitting, 174 Fidesz, 3, 4, 7–9, 16, 98, 138, 143, 146, 226, 244 Finland, 171 Finland, Presidency of the Council, 182 Fontaine, Nicole, 84 Foot-dragging, 174 FPÖ, 27, 76, 82, 83, 85, 90, 143 France and Germany, joint declaration, 186 Franco-German duo, 174 Frugal four, 174, 176, 200 G Galizia, Daphné Caruana, 181 Galizia, Daphne Caruana, 152 Gardiazabal Rubial, Eider, 212, 213, 215, 225 Generalised deficiency, 207, 216 GERB, 6, 147 German compromise, Regulation 2020/2092, 221, 222, 224, 225, 227 Germany, 171, 176 Germany, Presidency of the Council, 184, 196, 221, 225 Greek Association of Judges and Prosecutors, 249 Grindeanu, Sorin, 5 H Hahn, Johannes, 202 Haider, Jörg, 27, 83 Hallstein, Walter, 77, 78 Hard tools, 13, 276 Hearings, Article 7 TEU, 122, 183, 186, 188, 192 Hearings, Article 7 TEU, Council, Hungary, 188 Hearings, Article 7 TEU, Council, Poland, 187

286 

INDEX

Hearings, Article 7 TEU, Hungary, 189, 190 Hearings, Article 7 TEU, Poland, 186 Hobbes, Thomas, 43 Human Rights and Democracy Network, 248 Hungarian Parliament, 141 Hungary, 129 partisanship, 133 I Independence, 50 Independence, judiciary, 2–4, 6, 8, 11, 55, 88, 105, 109, 206 Infringement procedure, 119 Integration paradox, 19 International Bar Association, 251 International Commission of Jurists, 250 International Monetary Fund, 56, 104 Interpretative declaration, European Council, 230 Ireland, 103 Italy, 110, 112, 176, 200 Italy, Presidency of the Council, 179 Iustitia, 262 J Judicial council, 51, 54, 88 Judicial networks, 246 Judicial systems, 52 Juncker, Jean-Claude, 23–25, 98, 110, 120, 121, 200, 201 Jurova, Vera, 25 Justice reforms, 52, 88, 99, 109, 111, 112 Justice systems, 99, 105, 109

K Kaczynski, Jaroslaw, 121, 190 Kaczynski, Lech, 3 Kuciak, Jan, 6 Kucnirova, Martina, 6 Kurz, Sebastian, 146 L Latvia, 178 Law, 37, 38, 45, 46, 59 Left/right cleavage, Council, 175 Left/right dimension, 132 Legitimacy, 98, 277 Legutko, Ryszard, 7, 8, 11, 118 Lenaerts, Koen, 11 Les assises de la justice, 103 Les Assises de la Justice, 246, 249 Liberal democracy, 2 Lisbon Treaty, 81 Luxembourg, Presidency of the Council, 180 M Macron, Emmanuel, 121, 176, 199, 219 Magna Carta, 39 Malta, 129 partisanship, 133 Malta, Presidency of the Council, 185 March of a Thousand Robes, 260 Marinova, Viktoria, 147 Mechanism on Democracy, the Rule of Law and Fundamental Rights, 14, 23, 28, 130, 133, 165, 166 Merkel, Angela, 107, 121, 198, 219, 237, 275 Michel, Charles, 25 Michel, Louis, 82, 83

 INDEX 

Morawiecki, Mateusz, 9, 121, 208, 220, 223 Movimento Europeo Italia, 259 Movimiento Europeo Spain, 259 Multiannual Financial Framework, 201 Muscat, Joseph, 154 N National Council of Judiciary, Hungary, 3 Nationalism, 76 National Judicial Council, 54 National Judicial Office, Hungary, 4 Navracsics, Tibor, 256 The Netherlands, 171 Netherlands, Presidency of the Council, 120, 180 New intergovernmentalism, 2, 18, 19, 101, 196, 236, 274 New parliamentarism, 2, 18–19 New supranationalism, 2, 18, 21, 197, 275 New supranationalists, 101 Nezopont Intezet, 253 O OECD, 104 Oettinger, Günther, 201, 202 Old vs new member states, 176 Orbán, Viktor, 7, 25, 133, 135, 142, 191, 220, 223 P Pace-setting, 174, 176 Partisanship, 23, 27, 131, 132, 135, 149, 159 Partit Laburista, 135

287

PiS, 3, 6–9, 16, 119–121, 200, 244 Plato, 1, 37 Poland, 103, 129 partisanship, 133 Policy entrepreneur, 21, 88, 98 Policy instruments, 12 Policy seeking, 99 Political guidance, 216 Politicisation, 16, 29 Politics, 14, 15 Ponta, Victor, 5, 149 Portugal, 111, 112 Power, 11 Principles, 81 Problem solver, 104 Prodi, Romano, 84 PSD, 6, 135, 151, 225 R Rechtsstaat, 41 Recovery package, 201, 221 Reding, Viviane, 25, 97, 103, 137, 149, 246 Regulation 1303/2013, 199, 208 Regulation 2020/2092, 13–14, 19, 195, 211, 221, 252, 267 Regulation 2020/2092, emergency brake, 197 Reverse qualified majority, 108, 207, 209, 216, 218, 222, 223, 229, 238 Reynders, Didier, 25, 122, 181 Romania, 129, 149 partisanship, 133 Romania, Presidency of the Council, 196, 216, 217 Roth, Michael, 181, 188, 218, 219 Rule of Law Annual Report, 122 Rule of Law Dialogue, 172, 179–182, 184, 192

288 

INDEX

Rule of Law Framework, 13, 17, 100, 102, 112–116, 118, 119, 122, 166, 179, 209 Rule of Law Framework, EP, Bulgaria, 148 Rule of Law Framework, EP, Hungary, 142, 143, 156 Rule of Law Framework, EP, Malta, 154 Rule of Law Framework, Malta, 152 Rule of Law Report, 99 Rutte, Mark, 220, 223 S Sánchez, Pedro, 177 Sargentini Report, 145, 146 Sargentini, Judith, 145, 146, 189 Sarkozy, Nicolas, 199 Sarvamaa, Petri, 212, 215, 226 Scholz, Olaf, 275 Schussel, Wolfgang, 83 Science for Democracy, 259 Selmayer, Martin, 120 Single European Act, 79 Slovakia, Presidency of the Council, 181 Slovenia, 103 Soft tools, 13, 14, 99, 100, 276 Sovereign, 8, 40, 42, 43 Sovereignty, 9, 42–44, 61, 132, 135, 138, 150, 162, 163 Spain, 111, 112 Spill-over, 278 Supranationalisation, 252 Systematic threats to the rule of law, 116 T TAIEX, 89

Task Force, 106, 107 Tavares, Rui, 139, 140 Timmermans, Frans, 25, 119, 120, 172, 179, 185, 200, 256 Toader, Tudorel, 5 Treaty, Amsterdam, 80 Treaty establishing a Constitution for Europe, 81 Treaty of Nice, 80 Treaty of Rome, 75 Treaty on European Union, 79 Trialogues, 218, 224, 226, 227 Tusk, Donald, 25, 120 ‘t Veld, Sophie, 164 Twinning, 89 U United Nations, 54, 89 Universal Declaration of Human Rights, 54 V Values, 81, 90 Van Rompuy, Herman, 25, 106, 199 Varga, Judit, 122, 183, 189 Venice Commission, 5, 56, 57, 102, 103, 117, 118, 203 von der Leyen, Ursula, 25, 202, 234 W Washington consensus, 56, 63 Weber, Manfred, 137, 145, 146 World Bank, 56, 89, 104 Z Ziobro, Zbigniew, 3, 98, 122, 137